[[link removed]]

‘FRANKLY INSANE’: TRUMP’S PLAN TO SHIP MIGRANTS TO GUANTANAMO
COULD QUICKLY COLLAPSE  
[[link removed]]


 

Ben Fox
February 5, 2025
Politico
[[link removed]]


*
[[link removed]]
*
[[link removed]]
*
*
[[link removed]]

_ A reality check from a top lawyer who knows Guantanamo. _

A closed section of the U.S. prison at the U.S. Guantanamo Bay Naval
Station in Cuba on March 21, 2016., Lucas Jackson, Reuters

 

President Donald Trump’s plan to send up to 30,000 migrants to
Guantanamo Bay has echoes of the past — but it’s also unlike
anything ever done before. And it’s almost certainly doomed to fail.

That’s according to HAROLD HONGJU KOH, a Yale University law
professor and former senior State Department official whose career has
been deeply intertwined with Guantanamo.

“It is a mirage, but it’s also insane,” Koh said in an interview
with POLITICO Magazine.

The U.S. detained migrants at Guantanamo in the early 1990s under
President George H.W. Bush, when thousands of Haitians fled violence
in the wake of a military coup and were picked up at sea by the Coast
Guard. The administration refused to accept their claims of political
asylum and sent them to a makeshift detention camp on the base on the
southeastern tip of Cuba.

Koh led a team of Yale students and human rights lawyers who
challenged the detention of the Haitians, ultimately winning the
release of about 250 of them into the U.S. before losing the broader
case when he argued before the Supreme Court.

Trump is proposing something altogether different by sending people
who have already been in the United States, including some legally.
The move is also sure to invite new legal challenges — as well as
some of the same problems that emerged under President George W. Bush
in the post-9/11 era, when the U.S. turned the base into a military
detention center for people suspected of links to al Qaeda and the
Taliban. More than two decades later, that saga is ongoing, with 15
men still held there.

“This has been a consistent pattern over and over again,” said
Koh, who was the State Department’s top lawyer in the Obama
administration. “Shortsighted policymakers think they found a
solution, and they have ended up creating a problem for which they
have no exit strategy. That’s exactly what they’re doing again.”

_The following transcript has been edited for length and clarity._

WHAT WAS YOUR IMMEDIATE REACTION WHEN YOU HEARD PRESIDENT TRUMP WANTED
TO DETAIN MIGRANTS AT GUANTANAMO?

I thought: unprecedented, delusional and punitive.

Unprecedented, because Guantanamo has been used to hold people who
are _coming _to the United States. It’s never been used as a place
to send people who’ve been in the United States, especially those
who have been lawfully in the United States at some point. Secondly,
it was punitive, because what has been found over and over and over
again is that people think of Guantanamo as a solution, and it turns
out to be a false solution, because there is no exit strategy. Once we
put people there, it’s incredibly difficult to get them out. And
third, I thought it was delusional, because I don’t think it’s
ever going to be implemented in the way that he signaled the amount of
resources that it would take to bring 30,000 people to Guantanamo.

They’re going to want to use those resources at the border instead.
It’s frankly insane to be devoting that kind of effort to creating
an offshore prison camp. And if we create an offshore prison camp,
what do we say when Putin creates an offshore prison camp to hold the
next generation of his opponents, and then the Chinese decide to
create a prison camp to hold Uyghurs from Xinjiang?

It is a mirage, but it’s also insane.

BEFORE WE GET INTO THE LEGAL ISSUES, WHAT ARE SOME OF THE PRACTICAL
PROBLEMS WITH USING GUANTANAMO AS A DETENTION CENTER FOR MIGRANTS?

Well, the base was built to be a coaling and refueling station. It
wasn’t built to be a prison camp. It is, in fact, very poorly suited
to be a prison camp. There aren’t that many buildings. Most of them
are temporary. It’s a desert environment, and to put people into
tents is extremely unsafe as a public health matter. The water is bad.
Hospital facilities are insufficient. The more people you put there,
the less capacity you have.

And then, most important, people who are at Guantanamo are in prison.
They have no way to spend their time productively. They can’t work.
They can’t contribute to the economy. They can’t support
themselves. And so they’re entirely dependent on the people who are
holding them captive. It’s a way of taking people who may be working
legally on work authorizations and making sure that the only way that
they can manifest their frustration is by demonstrating, rioting,
resisting force. For this, the military on Guantanamo is totally
unsuited. The idea that uniform military are now being enlisted for
immigration detention on a grand scale is exactly what people didn’t
sign up for in a volunteer army. If they wanted to be prison guards,
they could sign up to be prison guards, but that’s not what they
did.

In 1993, Judge Sterling Johnson Jr. in the Brooklyn federal court
ruled that the conditions constituted a due process violation because
they were inadequate medical conditions for people who had HIV or
other kinds of people who were at Guantanamo. Pregnant women and
unaccompanied minors had to be taken off because the medical
facilities were insufficient. And that was with a much smaller
population. When you’re talking about 30,000 people, you’re going
to have to bring in five or 10 hospitals. They have one hospital,
which is not capable of handling anything that’s very difficult.

DOES THE U.S. GOVERNMENT SEE GUANTANAMO AS A LEGAL BLACK HOLE WHERE IT
CAN PRETTY MUCH DO WHATEVER IT LIKES?

Well, that’s how they see it, but that’s not how the courts have
ruled.

People being held against their will at Guantanamo have a right to
seek_ habeas corpus_. If that’s so, there’s no legal advantage to
the government in holding them offshore. You might as well just hold
them in the United States, which has been done in other kinds of
migrant camps on the border.

The problem is that large-scale detention efforts like this are bound
to fail, because there’s nothing for the detainees to do other than
to get frustrated, resist authority and get into fights with the
military who are holding them. The children are not being educated
adequately, and they sit around losing years of education and
educational opportunity. It’s an amazing way to convert a group of
people who otherwise would want to pursue productive activities into
being prisoners having committed no crimes.

CAN THE TRUMP ADMINISTRATION LEGALLY DETAIN MIGRANTS THERE AS PART OF
ITS CRACKDOWN ON IMMIGRATION, OR DOES IT NEED AUTHORIZATION FROM
CONGRESS?

They can do it for the short term. But as it becomes prolonged and
arbitrary detention, obviously, it will become illegal, and Congress
would have to authorize it.

WHAT ARE SOME OF THE PRACTICAL CHALLENGES THE GOVERNMENT FACES?

On one side of the base, there is something called the Migrant
Operations Center, which is actually quite a small building that has
maybe 100 cells. You have to cross the base to get to the other side,
where there’s a sort of American-style village, where soldiers live.
There’s a McDonald’s. There’s a department store. And then
beyond that are the camps. The Guantanamo detainees from the 9/11
period, the al Qaeda detainees, are being held there essentially in a
national security maximum security prison. Those are two completely
different facilities.

The Migrant Operations Center, over the course of the last 15 to 20
years, has had usually anywhere from five to 25 people being held who
came from Cuba or Haiti or whatever. But they’re quickly sent back
or sometimes sent to Canada or Australia. So there’s never a large
number of people there. They have a contingency plan where they could
expand if necessary, and when you land at Guantanamo, at the airport,
there’s a picture of the maximum capacity during the 1994 [episode],
which shows tents as far as the eye can see on all available runways.
If that’s so, you’re not able to land planes on Guantanamo.

All that Trump did was to authorize them to increase capacity, the
secretary of Defense and secretary of Homeland Security, up to 30,000
people. It’s a form of saber rattling because to actually get people
there, to actually have people holding them, to actually have
infrastructure to support them — water, electricity, hospitals, food
— would just be unbelievably expensive. On the al Qaeda side, it
costs something like a million dollars a person a day to hold someone
at Guantanamo. It’s the most expensive prison camp in the world.

And the main reason we have a problem is that Congress has not passed
comprehensive immigration legislation or provided adequate resources
for the policies that the Trump and Biden administration were
originally pursuing. This is scaling it up probably 10 or 15 times.
Where’s the money going to come from? Especially since they’re
planning to do all these other kinds of things — invade sanctuary
cities, mass deportations, a lot more activity at the border. I mean,
this is a massive addition to that. That’s why I call it a delusion
or a mirage. It’s designed to scare people, but I don’t think
it’s going to be fully implemented.

ARE THERE ANY SIMILARITIES TO WHAT TRUMP IS PROPOSING AND WHAT THE
U.S. DID WITH THE HAITIAN AND CUBAN MIGRANTS IN THE 1990S?

No, the Haitians and Cubans had never entered the United States. They
were stopped in the high seas, and they were interdicted, as it was
called, and they were brought to Guantanamo. In some of the cases, in
some of the boat lifts, Fidel Castro had deliberately urged people to
leave as a way of harassing the United States. They never entered.

The people Trump is talking about bringing there are people who are
inside the United States, are persons under the due process clause and
have certain legal rights. They can still invoke those rights even if
they’re taken to Guantanamo. The Supreme Court has said very clearly
that the government cannot divest an individual of rights simply by
moving them around so that they lose their right to _habeas corpus_.

This is a very poorly lawyered order.

This has been a consistent pattern over and over again. Shortsighted
policymakers think they found a solution, and they have ended up
creating a problem for which they have no exit strategy. That’s
exactly what they’re doing again.

We’re now down to 15 people at Guantanamo. The place should be
closed and shuttered, and instead, every time that happens, somebody
thinks, oh, here’s a solution. And then, you know, we’ll go
another 20 years, and then they’ll be disabused of that at that
time. Even George W. Bush, who opened Guantanamo [as a military
detention center], said he thought it was a mistake after the fact. At
one point it reached a height of, but it was never more than, 743, I
think. And then nobody was brought there under Obama or Biden. And in
fact, nobody was brought there under Trump One. Through a process of
attrition, they finally got it down. Interestingly, in the first Trump
administration, he never expressed that interest in expanding
Guantanamo, but suddenly, somebody on his new team has thought they
found a new solution, and you know, they’ll just be educated like
everybody else.

ARE ANY OF THE LEGAL FIGHTS FROM THE POST-9/11 YEARS AT GUANTANAMO
RELEVANT TO WHAT IS BEING PROPOSED?

There were three very significant Supreme Court decisions — striking
down the government’s effort to run military commissions, to deny
people statutory _habeas corpus_ and deny people
constitutional _habeas corpus_. Those don’t directly relate,
because these people are not prisoners of war or unlawful combatants.
They’re migrants, and so they don’t have the exact same rights.
But the question is whether, in addition to detaining them, they try
to subject them to a different system of justice, a truncated system
of justice. The problem is that if they had been held in the United
States, which is where they are now, they would have certain rights
under the immigration laws, and they don’t lose their rights just
because they’re transported to Guantanamo. What the Supreme Court
cases have made clear is that Guantanamo is “territory subject to
the jurisdiction of the United States” and so they ought to be able
to claim comparable rights. Given that, what is the advantage of
moving them there at extraordinary expense, and with the inadequate
facilities, in that the litigation will ensue anyway? The only
advantage, I suppose, is to claim that they’re out of sight, out of
mind. But that’s just creating an offshore prison camp that you hope
that nobody notices, but the Chinese and the Russians certainly will.

HOW DO YOU THINK THIS WILL ALL PLAY OUT?

Donald Trump doesn’t make long-range plans, and he doesn’t stick
with his plans when faced with concerted opposition, so I think he
wants to use shock-and-awe methods to scare people, and that’s what
he’s doing across the board. It’s already stimulated a large
amount of resistance. Many of his orders have been blatantly
unconstitutional, like the order on birthright citizenship. If he
tries to move people to Guantanamo, there’ll be more litigation, and
people are now very familiar with litigating about Guantanamo. People
have worked on these issues for 30 years. The people who worked on
this in the government, many of them are being sacked, and so for
them, it will be new.

I think the net result is they will start to find that this is not the
easy solution that they thought. And then they will quietly slow it
down and stop doing it. But don’t be surprised if Trump claims that
he got some kind of symbolic victory out of it, and that maybe nobody
will look behind to see that the emperor has no clothes.

IF YOU WERE STILL IN THE GOVERNMENT, WHAT WOULD YOU BE TELLING THE
TRUMP ADMINISTRATION?

I’d be saying, you only think you found a new solution. Every
policymaker that thought they came up with a magic solution realized
that it’s a poisoned chalice. There is no exit strategy. Don’t kid
yourself about the amount of time and energy that will be devoted to
this. You have not solved the problem. You’ve created a problem.

I’d say don’t do it even if I completely agreed with the reasons
for doing it. This is about the least effective way you can imagine.
It will be high profile. It will be litigated. It will create turmoil
among our allies. And it will be a failure.

Wherever the U.S. flag flies, people have rights, and Trump seems to
believe that through the artifice of moving people there, he can
insert them into a black hole. That’s a proposition that the Supreme
Court rejected before, and even this Supreme Court, I think, will
reject it again.

_Ben Fox is a senior editor at POLITICO. He reported from the U.S.
base at Guantanamo Bay, Cuba, dozens of times between 2005-2021 while
covering the base as an Associated Press journalist._

 

* Guantanamo; US Military Prison at Guantanamo;
[[link removed]]
* undocumented immigrants
[[link removed]]
* Donald Trump
[[link removed]]

*
[[link removed]]
*
[[link removed]]
*
*
[[link removed]]

 

 

 

INTERPRET THE WORLD AND CHANGE IT

 

 

Submit via web
[[link removed]]

Submit via email
Frequently asked questions
[[link removed]]
Manage subscription
[[link removed]]
Visit xxxxxx.org
[[link removed]]

Twitter [[link removed]]

Facebook [[link removed]]

 




[link removed]

To unsubscribe, click the following link:
[link removed]