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.”
Trump’s Migrant Deportations: Judge Says Nazis in US in WWII Had More Rights to Contest Their Removal Than Venezuelan Migrants Now
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Last Wednesday (March 26), Judge Patricia Millett, a judge in the appeals court in Washington D.C., delivered a stinging rebuke to the Trump administration’s use of the Alien Enemies Act of 1798 to deport 238 Venezuelan migrants — allegedly members of the Tren de Aragua gang — to CECOT, El Salvador’s notorious maximum-security “terrorist” prison, where they are all now imprisoned without charge or trial, for at least a year, and perhaps more, at a cost to the US taxpayer of $6 million, even though no evidence was presented by the Trump administration to confirm that they were gang members, and even though, in some cases, compelling testimony from family members would seem to confirm that they had no involvement whatsoever with Tren de Aragua.
At the hearing on March 26, Judge Millett told the government’s main lawyer, Drew Ensign, a Deputy Assistant Attorney General in the Justice Department, that “Nazis got better treatment under the Alien Enemies Act than has happened here”, in an exchange relating to whether or not, as the Guardian described it, “Venezuelans targeted for removal under the Alien Enemies Act had time to contest the Trump administration’s assertion that they were members of the Tren de Aragua gang before they were put on planes and deported to El Salvador.”
Trump’s disturbing invocation of the Alien Enemies Act of 1798
Donald Trump invoked the Alien Enemies Act in a “proclamation” on March 15, in what appeared to be a nakedly authoritarian attempt to deport Venezuelans alleged to be members of the gang without making any effort to establish whether or not that was the case.
Who's still at Guantánamo?
