Judge Condemns the Trump Administration’s Illegal and “Impermissibly Punitive” Use of Guantánamo to Hold Migrants

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I wrote the following article for 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.

The wheels of justice may grind slowly in the US court system, for reasons that involve various forms of inefficiency, but also the requirement to conduct detailed research into legal precedents. Nevertheless, throughout the Republic’s 249-year history, the courts have repeatedly, if, at times, in a glacial manner, performed a key role in ensuring that the checks and balances in the Constitution — the separation of powers between the executive, the legislative and the judicial branches of the government — are enforced.

On December 5, ten months after a particularly noxious example of executive overreach began — the detention of migrants with final deportation orders from the US in detention facilities on the grounds of the US naval base at Guantánamo Bay — Judge Sparkle L. Sooknanan, a judge in the District Court in Washington, D.C., ruled definitively that the Trump administration’s policy of holding migrants at Guantánamo was both “impermissibly punitive”, as a violation of the Fifth Amendment’s Due Process Clause, and was also completely unauthorized under the Immigration and Nationality Act (INA).

The ruling came in a class action lawsuit, Luna Gutierrez v. Noem, that had first been submitted in June by lawyers from the American Civil Liberties Union (the ACLU), the Center for Constitutional Rights (CCR) and the International Refugee Assistance Project (IRAP) on behalf of two Nicaraguan nationals who were held at Guantánamo at the time, but also on behalf of every other migrant in “a similarly situated class”; namely, “all immigration detainees originally apprehended and detained in the United States, and who are, or will be held at Naval Station Guantánamo Bay, Cuba.”

As the lawyers stated, “They do not challenge the government’s authority to detain them on US soil or to directly remove them to their home country or to another statutorily authorized country. What they challenge is the government’s unprecedented and unlawful decision to hold them in a detention facility at Guantánamo — which, under the INA, and for purposes of the application of that statute, is not the United States. Immigration detention outside the United States is straightforwardly illegal under the statute.”

“Moreover”, they added, “the government’s use of Guantánamo for immigration detention is arbitrary and capricious, lacks any legitimate purpose, and imposes punitive detention conditions on immigration detainees in violation of their constitutional rights.”

The Trump administration subsequently sought to dismiss the case, and a hearing was held on October 23, leading to Judge Sooknanan’s ruling on December 5, in which she largely affirmed the class action designation, and issued a lengthy memorandum opinion demolishing the government’s inadequate case.

“The facts, accepted as true”

In her ruling, Judge Sooknanan began by drawing on “the facts, accepted as true, from the Plaintiffs’ Complaint”, which shredded the government’s initial claims that it was holding “the worst of the worst” and “high threat” criminals at Guantánamo, by noting that the government had since “admitted that many of the immigrant detainees held at Guantánamo [were] ‘low-risk’, with no criminal record other than an immigration violation.”

She also decried the exorbitant cost of holding migrants at Guantánamo — “approximately $100,000 per day per detainee”, compared to “an average of $165 per day per detainee” on the US mainland — and also confirmed the many examples of high-ranking government officials making “public statements about the purpose for housing immigration detainees at Guantanamo.”

These revealed that the policy didn’t involve any type of necessity, but was, as defense secretary Pete Hegseth explained, about “deterrence.” Hegseth added that the Guantánamo mission was “central to the message we’re sending to the world – which is that our border is closed.” Also quoted was Kristi Noem, the Secretary of Homeland Security, who bragged on social media that she “was just in Cuba” and that noncitizens should “not come to this country or we will hunt you down, find you, and lock you up.”

Also of note, though not mentioned, was the fact that, in the executive order that Trump issued on January 29, which called for the massive expansion of the existing Migrant Operations Center at Guantánamo (initially set up in the 1970s to intercept migrants at sea) to hold up to 30,000 migrants, he described all of these mostly theoretical detainees as “high-priority criminal aliens unlawfully present in the United States.”

Judge Sooknanan also ran through the deplorable conditions to which the migrant detainees were subjected at Guantánamo, which, appropriately, resembled those which the “war on terror” prisoners were obliged to endure, because, while some of the 700+ migrants held to date at Guantánamo have been held in the Migrant Operations Center, the majority have been held in Camp 6 of the “war on terror” prison, after the three remaining “low-value detainees”, held there for many years, had been shunted unceremoniously into another block, Camp 5, where the so-called “high-value detainees” are held — and from whom, for nearly two decades, it has been regarded as essential for national security that the “low-value detainees” remain strictly segregated.

Neither she nor the complainants noted this, or, indeed, noted the blatant illegality of using Camp 6, which I have written about before, not only because it wasn’t mentioned in the executive order, but primarily because its use, by law, is strictly reserved for those held because of their supposed connection with Al-Qaeda and the 9/11 attacks.

Recounting the conditions to which the migration detainees were subjected, Judge Sooknanan stressed that they were “primarily guarded by military personnel”, that they were “not told the time of day, nor [were] they informed about their immigration cases, what [would] happen to them, or where they [would] be taken next”, were “provided no way to make medical requests”, and received “insufficient food”, with some losing “as many as 10-20 pounds” in a matter of weeks.

At Camp 6, she added, they were “permitted only one hour per day of recreation in an indoor cage”, and “[g]uards have physically harmed detainees and withheld water from them as a form of punishment.” In addition, those who “complained about conditions or mistreatment to officers have been tied to restraint chairs for hours.”

At the Migrant Operations Center, meanwhile, immigration detainees were housed “in small, barracks-style units, with several people held in each room”, and were “always confined to their units, except for one hour a day” when they were “released into a small recreation pen, surrounded by armed military personnel and guard dogs.” When they returned from recreation, they were “invasively searched”, “including a pat down of their genitals”, and, in addition, “Guards insult[ed] and taunt[ed] the detainees” and “threatened to shoot them.”

Is Guantánamo part of the United States?

For much of her ruling, Judge Sooknanan took apart the government’s feeble claims that the court lacked jurisdiction, much of which, I have to say, may be largely impenetrable to non-legal minds.

After a lengthy legal analysis of the meaning of “removal” with reference to “removal orders”, one particular section that struck me as significant, however, dealt with the definition of the “United States” in the INA, which was relevant because Judge Sooknanan had established that “removal occurs when an individual subject to a removal order departs from the United States.”

As she noted, Section 8 U.S.C. § 1101(a)(38) of the INA states, unambiguously, that “[t]he term ‘United States’, except as otherwise specifically herein provided, when used in a geographical sense, means the continental United States, Alaska, Hawaii, Puerto Rico, Guam, the Virgin Islands of the United States, and the Commonwealth of the Northern Mariana Islands.”

Accordingly, as she added, drawing on the opinion of Judge A. Raymond Randolph of the D.C. Circuit Court in a Guantánamo case from 2020, Ali v. Trump, “Guantánamo is not part of the United States under the [INA].” She also cited the Detainee Treatment Act of 2005, which also dealt with Guantánamo, and in which it was stated that “the term ‘United States’, when used in a geographic sense, is as defined in [the INA], and, in particular, does not include the United States Naval Station, Guantánamo Bay, Cuba.”

Interestingly, despite previous Justice Department lawyers having spent two decades  asserting that Guantánamo was not part of the United States, to try to keep the prison and the prisoners beyond the reach of the courts, Trump’s lawyers sought, in this particular case, to argue the opposite, drawing on Boumediene v. Bush, the Supreme Court case in 2008 that established that the “war on terror” prisoners at Guantánamo had habeas corpus rights that were constitutionally guaranteed.

Judge Sooknanan noted that the government’s lawyers “appear[ed] to resist” the INA definition of the United States with reference to Boumediene, in which the Court held that Article I, Section 9, Clause 2 of the Constitution, in which “The Privilege of the Writ of Habeas Corpus shall not be suspended”, “has full effect at Guantánamo Bay.”

As she added, “Among the factors contributing to that conclusion, the Court noted that ‘[i]n every practical sense Guantánamo is not abroad; it is within the constant jurisdiction of the United States.’” As she also noted, “The Defendants posit that (but do not explain why) Boumediene ‘undercuts [the Plaintiffs’] foundational claim that Defendants are unable to detain aliens at [Guantánamo]’” — although their sudden reawakening of interest in Boumediene might also interest lawyers working for the 15 men still held in the “war on terror” prison.

Moving on to the “Sufficiency of the Complaint”, Judge Sooknanan rightly noted that, “As counsel for the Defendants acknowledged at the motions hearing, before the Guantánamo-detention policy at issue here, the United States had never run a detention facility outside of the United States for individuals subject to removal orders.”

“Yet now”, she added, “the Defendants assert that the INA grants the Executive essentially boundless authority to arrange for detention facilities anywhere outside the United States, including a statement in the motions hearings ‘claiming authority to hold immigration detainees at US military bases all around the world.’”

In a withering putdown of the government’s position, she stated, “The unprecedented nature of this claim of authority is another clue that the Defendants’ reading of the statutory scheme is wrong”, and cited a case from 2014, Util. Air Regul. Grp. v. EPA, in which the ruling stated, “When an agency claims to discover in a long-extant statute an unheralded power to regulate a significant portion of the American economy” — or to make another “decision[] of vast economic and political significance” — “we typically greet its announcement with a measure of skepticism.”

The betrayal of the Due Process Clause of the Fifth Amendment

Judge Sooknanan’s final demolition job involved the government’s betrayal of the Due Process Clause of the Fifth Amendment, which states that “no person” shall be deprived of “life, liberty, or property, without due process of law.”

Stating that the Supreme Court has held that “government detention violates that Clause unless the detention is ordered in a criminal proceeding with adequate procedural protections”, she added that, although immigration proceedings “are civil, not criminal”, a Supreme Court case, Bell v. Wolfish, in which the Court found that, “under the Due Process Clause, a detainee may not be punished prior to an adjudication of guilt in accordance with due process of law”, has been “consistently applied” by the lower courts “in the context of immigration detention.”

In backing the detainees’ claim that the government’s “policy of detaining class members at Guantanamo is impermissibly punitive in violation of the Due Process Clause”, Judge Sooknanan found that the detainees’ Complaint “sufficiently alleges that the Guantánamo-detention policy constitutes impermissible punishment”, because it “includes several statements from government decisionmakers reflecting that the ‘expressed intent’ behind detaining the class at Guantánamo is punishment”, as noted above.

Judge Sooknanan added that, even “[i]nterpreting these alleged statements in the light most favorable to the Plaintiffs, as the Court must at this stage in the litigation, the Court sees unusually strong direct evidence that the Defendants chose to detain some noncitizens at Guantánamo for the express purpose of retaliating against them and deterring others’ conduct. But as the Supreme Court stated in Bell itself, ’[r]etribution and deterrence are not legitimate nonpunitive governmental objectives.’”

Returning to the Complaint, she endorsed its further allegations that “the government is perversely utilizing Guantánamo’s well-known history as a site of abuse and mistreatment, including as the location of two former CIA ‘black sites’, to frighten immigrants”, and, drawing on the other features of detention at Guantánamo that are not present at detention facilities in the United States, including “military personnel as guards”, “use of restraint chair”, “recreation period supervised by military personnel and guard dogs”, and “prohibition on religious materials”, concluded that, “to the extent that a violation of due process requires more than proof that a detaining official subjectively desired to punish an immigration detainee, the Complaint here goes well beyond that subjective desire. It adequately pleads that the Defendants’ Guantánamo-detention policy contemplates consequences different —and indeed, materially more severe — than what is typical of lawful confinement in connection with removal.”

It remains to be seen if the Trump administration will appeal, but it really ought to be apparent to them, after Judge Sooknanan’s ruling, that there are no grounds whatsoever for doing so.

In the meantime, however, it is at least commendable that a definitive legal blow has been struck with regard to Guantánamo and immigration detention, and, although the ruling has no impact on the 15 men still held in the “war on terror” prison and entombed under Donald Trump, it is also reassuring that, in her ruling, Judge Sooknanan made a point of noting that, since the prison opened, it “has been synonymous with pervasive mistreatment and indefinite detention.”

* * * * *

Andy Worthington is a freelance investigative journalist, activist, author, photographer (of a photo-journalism project, ‘The State of London’, which ran from 2012 to 2023), 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”, which you can watch on YouTube here.

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. He has also, since, October 2023, been sickened and appalled by Israel’s genocide in Gaza, and you can read his detailed coverage here.

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