Guantánamo Bay has been a fiendish experiment in US law for decades. The fiendishness lies in the subversion. Operating as a naval base in Cuba, this contentious facility has been the site and location for the cruelties of paranoia and empire, a place where such laws as due process are subverted, and the presumption to innocence soiled. In this contorted way, the civilian and military branches have mingled and corrupted, the result proving a nightmare for legal authorities keen to ensure that such a facility does, at the very least, observe that sad, dusty relic known as the rule of law.
Legal sharpshooters have been baffled by the latest experiment with the facility, this time from the Trump administration and its efforts to use it as a detention centre for unwanted migrants. On January 29, the US president directed the Secretaries of Defense and Homeland Security “to take all appropriate actions to expand the Migrant Operations Center at Naval Station Guantanamo Bay to full capacity to provide additional detention space for high-priority criminal aliens unlawfully present in the United States”. Furthermore, the secretaries were directed “to address attendant immigration enforcement needs identified” by the departments. The first flight transferring migrants from US soil to the facility took place on February 4 this year.
The intention is to house up to 30,000 people, but it is already clear that not all, contrary to what the president claims, are “the worst criminal aliens threatening the American people.” Some have been found to be of a “low-threat” category, hardly the sort to terrify the peace of mind of your average US citizen. Yet again, we find himself inhabiting a world of dismal illusions.
Such an authorisation can hardly be said to fall within the all too conveniently expansive 2001 Authorization for the Use of Military Force (AUMF), which focuses on the interminable prosecution of the formerly known Global War on Terror. The MOC is its own beast, a separate instrument controversial for “housing” (as opposed to “detaining”) its residents. It is located on the Leeward side of the base and was created to house Caribbean migrants interdicted at sea in the 1990s.
The entities relevant to running the MOC are the State Department’s Bureau of Population, Refugees, and Migration (PRM) and the US Citizenship and Immigration Services (USCIS) responsible to the Department of Homeland Security. Interdicted migrants are assessed to see if they deserve “protected” status, one that is granted if the individual has a genuine fear of harm arising if they are returned to their country or origin. Historically, during the phase of their assessment, migrants receive a basic set of services in healthcare, housing, education, and job training.
The use of the island to deal with immigrants has been a blighted practice undertaken by US administrations since the 1970s. The Ford and Carter administrations held Haitians at the base as they awaited asylum interviews. After a cessation of immigration detention onsite under the Reagan administration, the unsavoury practice was resumed in 1991. Again involving Haitians, only this time in greater numbers, given the military coup, some 12,500 were transferred to a shoddy, makeshift camp. Under Bill Clinton’s presidency, the camp was emptied, but the rights of those interdicted was systematically stripped to enable them to be repatriated. In 1994, the camp, in all its squalid ingloriousness, was reopened to house Cubans and Haitians in their tens of thousands.
The issue of valid authorisation is not a mere semantic quibble. Trump’s actions have consequential disturbances to the rule of law. The administration is seemingly pushing, not merely a smudging of the categories in terms of dealing with migrants, but their obliteration. What we are left with is a nasty mixture of terror and malfeasance, a point that utterly repudiates basic protections offered by the UN Refugee Convention.
Nor is it clear whether the administration can legally carry out these measures. The MOC migrants being transferred will not be deprived of legal rights afforded them under the US Constitution, which include access to the judicial system and legal counsel, due process protections which cover arbitrary or indefinite detention, the right to appropriate conditions of confinement, and the right to seek release from unlawful detention. It is also important to distinguish those immigrants interdicted at sea who seek asylum in the United States, and those already on US soil. A case is currently pending on the issue before US Judge Carl Nichols in Washington, D.C., though a court date is yet to be set.
In terms of both cost and logistics, this detention measure is also untenable. It has been estimated that the average cost for an immigration detention bed will be quintupled from its current annual total of $57,378. Ensuring access to legal counsel and guaranteeing humane treatment will also present a nightmarish scenario for the authorities, given the scale of the expansion sought by Trump.
So far, lawyers from the Justice Department have unconvincingly claimed that the limited availability of phone calls to counsel located off the base was a “reasonable and consistent” measure when it comes to the “temporary staging” of migrants with final deportation orders to other countries.
The Trump administration’s waspish approach to unwanted immigrants replicates the pattern of deterrence and demonisation used by other countries (member states in the European Union and Australia comes to mind) that have treated unwanted arrivals as an interchangeable commodity with political objects and national security: the terrorist, the hardened criminal, the deviant, the immoral figure best barred from entering their borders. But at the very least, a firmly established legal system, if mobilised correctly, has some prospect of sinking this hideous experiment.