Trump to Open Gitmo for Alien Detainees

On January 29, President Trump sent a memorandum to his Defense and Homeland Security secretaries captioned “Expanding Migrant Operations Center at Naval Station Guantanamo Bay to Full Capacity”. He explained that he wants to expand the migrant detention facilities at that base, colloquially known as “Gitmo”, to hold up to 30,000 of the “worst criminal aliens”. This isn’t the first time the only U.S. facility in Cuba has been used to hold migrants — but this proposal comes with any numbers of twists, including at least three Supreme Court opinions, two executive orders, and the recently signed “Laken Riley Act”.

Guantanamo Bay. Cuba was under the control of Spain in February 1898, when the battleship U.S.S. Maine exploded while at anchorage in Havana.

Spain was fighting a rebel insurgency on the Caribbean island at the time, and the explosion eventually prompted President William McKinley in April 1898 to ask Congress for permission “to end the fighting in Cuba between the rebels and Spanish forces, and to establish a ‘stable government’” to “ensure the ‘peace and tranquility and the security’ of Cuban and U.S. citizens on the island”.

Congress quickly complied, and the Spanish-American War ensued. The “splendid little war”, as then-Secretary of State John Hay described it, was a one-sided affair, and Spain quickly sued for peace. The two nations signed the Treaty of Paris, which guaranteed Cuba’s independence, that December.

In 1903, the new Cuban government entered into an agreement under which the United States would rent Guantanamo Bay from Havana in a deal that has no set termination date.

That lease has continued ever since, despite the strained relationship that has existed between the two countries since socialist dictator Fidel Castro seized power in Cuba in 1959.

Migrant and Terrorist Detention at Gitmo. Riots and conflict in the early 1990s prompted thousands of Cuban and Haitian “rafters” to depart their respective island nations by sea on their way to the United States.

In response, in August 1994, President Bill Clinton resumed a policy first implemented under the George H.W. Bush administration and announced that interdicted rafters would no longer be brought to the United States but instead would be interred at Gitmo.

The outflow continued, and at one point approximately 33,000 interdicted Cuban and Haitian migrants were being held at the naval facility.

A September 1994 accord, pursuant to which the United States would accept at least 20,000 Cuban refugees per year, ended the standoff between Washington and Castro, and in June 1995, the White House press secretary announced that the remaining 18,500 detainees would be considered for parole into this country.

The capture of terrorists following the September 11 terrorist attacks prompted President George W. Bush to open a detention facility for them at Gitmo in January 2002.

Barack Obama campaigned on a promise to close the detention facility, and shortly after taking office, he signed Executive Order (EO) 13492, “Review and Disposition of Individuals Detained at the Guantánamo Bay Naval Base and Closure of Detention Facilities”.

While the number of terrorists detained at Gitmo declined thereafter, the facility wasn’t shuttered, and at one point during Obama’s term, 48 detainees there were deemed “too dangerous to transfer but not feasible for prosecution”.

After winning election in 2016, President-elect Donald Trump vowed to expand detention at the facility during a speech in Sparks, Nev.:

This morning, I watched President Obama talking about Gitmo, right, Guantanamo Bay, which by the way, which by the way, we are keeping open. Which we are keeping open … and we’re gonna load it up with some bad dudes, believe me, we’re gonna load it up.

In January 2018, Trump thereafter issued EO 13823, “Protecting America Through Lawful Detention of Terrorists”. Among other things, that EO stated:

The detention operations at the U.S. Naval Station Guantánamo Bay are legal, safe, humane, and conducted consistent with United States and international law. …

Those operations are continuing given that a number of the remaining individuals at the detention facility are being prosecuted in military commissions, while others must be detained to protect against continuing, significant threats to the security of the United States, as determined by periodic reviews.

Like his old boss, President Biden also came into office planning to close the detention facility at Gitmo, but just months later the Department of Defense (DoD) began building a second courtroom for “war crimes trials” there.

“President Trump Has Been Very Clear”. Shortly after President Trump made his latest announcement concerning Gitmo, DoD issued a statement from Secretary of Defense Pete Hegseth about migrant detentions there:

President Trump has been very clear with [migrant countries of origin] that if [they] aren’t willing to take [their] criminals back … then we will hold you accountable. … This is not the camps. … This is a temporary transit which is already the mission of Naval Station Guantanamo Bay, where we can plus-up thousands — and tens of thousands, if necessary — to humanely move illegals out of our country where they do not belong [and] back to the countries where they came from in proper process.

Hegseth continued:

President Trump is dead serious about getting illegal criminals out of our country. … And the DOD is … proud to partner with DHS to defend the sovereignty of our southern border and advance that mission.

Section 241(a)(2) of the INA and the “Laken Riley Act”. To explain how Hegseth — and Trump — intend to use Gitmo, I turn to section 241 of the Immigration and Nationality Act (INA), “Detention and removal of aliens ordered removed”.

Paragraph (a)(2) therein requires DHS to take aliens ordered removed into immediate custody and to deport them within 90-days, the so-called “removal period”.

That detention-and-removal protocol has long been, at best, aspirational. Few non-detained aliens are taken into custody as soon as an immigration judge orders them removed, and even fewer have been removed during that removal period.

Notably, however (and not to be repetitive), section 241(a)(2) mandates that DHS detain all those aliens and expressly bars DHS from releasing any alien who has been ordered removed on any criminal ground.

Note that Trump made his statements about Gitmo detention immediately before he signed the “Laken Riley Act”.

The timing was likely intentional, because section 3(e) of that act empowers state attorneys general to file suit in federal court to force DHS to arrest and detain aliens — and criminal aliens in particular — who are subject to detention under section 241(a)(2) of the INA.

To paraphrase Brody (Roy Scheider) in the 1975 summer blockbuster “Jaws”, DHS is now “gonna need a bigger detention facility” to hold all of those aliens, given that when Trump came into office, DHS only had about 40,000 daily alien holding beds, total.

Fewer than 40,000 aliens are awaiting removal at any given time, of course, but ICE (which administers immigration detention) also uses those beds for migrants who are arrested at the border and aliens the agency arrests in the interior. While border apprehensions have plummeted in the first week under Trump, ICE interior arrests are soaring.

“Recalcitrant Countries”. Normally, it doesn’t take 90 days for ICE (which also performs deportations) to deport aliens under final orders of removal, because most countries comply with their international obligations and provide ICE with the travel documents and permission the agency needs to return those aliens in short order.

Some foreign governments, referred to as “recalcitrant countries”, however, refuse to comply.

As I noted in September 2024 while explaining why hundreds of thousands of criminal aliens were still in the United States: “Cuba, India, and China are all notorious for this practice … but you can add Russia, Vietnam, Venezuela, and numerous others to that list as well.”

Countries on that naughty list had gotten used to slow-rolling the Biden-Harris administration in taking back their nationals, but with a second Trump administration looming, some of them felt a new sense of urgency.

India in particular quickly agreed to take back 18,000 of its citizens who had been lingering here.

Colombia tried to push back over returns six days after Trump’s inauguration, only to be forced to quickly backtrack when Trump threatened to raise tariffs on the country and Secretary of State Marco Rubio began imposing visa sanctions.

Perhaps Cuba, Vietnam, Venezuela, and the rest will soon see the light, but Trump and Hegseth aren’t taking any chances that DHS won’t be stuck holding dangerous criminals that it can’t deport but that it will be sued over if it releases. Hence, Gitmo.

Zadvydas v. Davis. The United States is a big country, however, and logically there are any number of places that DHS could house those criminal migrants from recalcitrant countries that it’s unable to remove. So, why send them to Cuba?

To answer that question, I first turn to the Supreme Court’s 2001 opinion in Zadvydas v. Davis.

In that case, a majority of the justices ruled that the then-Immigration and Naturalization Service (INS) — precursor to ICE in alien detentions and removals — could not indefinitely hold aliens it couldn’t remove but who posed a flight risk or a danger to the community if released, with limited exceptions.

Under Zadvydas, DHS must generally cut those aliens loose in six months, and it has issued regulations to guide officers in identifying cases where there is a “significant likelihood of removing a detained alien in the reasonably foreseeable future” and governing determinations they must make to hold aliens ordered removed for more than 90 days.

Some aliens are too dangerous to release but detaining them indefinitely invites habeas and other court actions. That puts Trump and DHS on the horns of a legal dilemma, between aliens’ advocates on the one hand and newly empowered state attorneys general on the other.

As I explained in some depth in early January, however, DHS has the authority to remove aliens to any country that will take them, not just to their countries of nationality and last habitual residence.

Few countries are willing to take criminally dangerous third-country nationals, however, but what if there were yet another option, one that involves removing the alien from the United States to property that the United States leases, but doesn’t actually own? Good question.

In its 2004 opinion in Hamdi v. Rumsfeld, the Supreme Court held that a U.S. citizen detained at Gitmo who had been apprehended in Afghanistan and designated as an “enemy combatant” had due process rights, and in Rasul v. Bush (issued the same day), it concluded that foreign nationals detained there had habeas corpus rights to challenge their detentions, as well.

Technically, I guess, the administration could argue that criminal aliens under removal orders have been deported from the United States, but most federal courts are likely to conclude that argument is too cute by half, because they are still under U.S. authority.

More likely than not, however, the president’s Gitmo proposal is a signal to recalcitrant countries that his administration will be using every tool at its disposal to keep their criminal nationals off American streets, and that we intend for those countries to live up to their obligations. Whether it works depends on what other pressure his administration brings to bear.

On the Other Hand. Perhaps, however, I am simply overthinking all of this. Prior administrations have held aliens at Gitmo, the naval station has space, and detaining criminal aliens ordered removed there keeps DHS from having to rent beds elsewhere. On that level, it makes sense.

The Cuban government, on the other hand, isn’t happy. According to CBS News, Cuban President Miguel Diaz-Canel referred to Gitmo detention facilities as “well-known prisons of torture and illegal detention” and deemed the move “an act of brutality” — but then he and his government are experts on those topics.

Whether and when the Trump administration actually sends migrants who have been ordered removed to Gitmo remains to be seen. Regardless, if Trump and Hegseth follow through, I will likely soon be able to add more federal court decisions to the list of cases that have addressed detention there.