Halle Busch
On January 29, 2025, less than a month into his second presidential term, President Donald Trump issued a memorandum titled “Expanding Migrant Operations Center At Naval Station Guantanamo Bay To Full Capacity.”[1] The memo, issued by the White House, directed the Secretary of Defense and the Secretary of Homeland Security to expand capacity at the Migrant Operations Center (MOC) housed at Guantanamo Bay “to provide additional detention space for high-priority criminal aliens unlawfully present in the United States.”[2] The memo’s purpose was further clarified, noting “This memorandum is issued in order to halt the border invasion, dismantle criminal cartels, and restore national sovereignty.”[3]
Guantanamo Bay’s MOC has been used to detain migrants in the past, but use of the center to hold detainees from within the United States is unprecedented.[4] The International Refugee Assistance Project noted that if the Trump administration follows through on its promise to detain up to 30,000 people at the MOC,[5] it would be the first time since the 1990s that the United States government would use the migrant facility at Guantanamo Bay at this scale.[6] The MOC has primarily been used in the past to detain migrants intercepted at sea.[7] The facility was first used to hold migrants in response to the 1991 Haitian refugee crisis.[8] Since then, it has largely been used to detain Cuban migrants who were intercepted while trying to leave the island.[9] Use of the MOC during the Haitian refugee crisis was originally billed as humanitarian relief, but was subsequently considered to be a ploy to escape the requirements of the U.N. Refugee Convention.[10]
The primary difference between the use of the MOC in the 1990’s and Trump’s proposed use of the facility today is that the January 2025 memo directs the U.S. government to move migrants who were already present on U.S. soil to the facility. In the past, the MOC only held migrants intercepted at sea.[11] Additionally, migrants and wartime prisoners have historically been kept entirely separate while detained at Guantanamo Bay.[12] Migrants present at the facility are kept in the custody of the Department of Homeland Security, whereas suspected terrorists are kept in the custody of the Department of Defense.[13] However, U.S. defense officials have stated that ten migrants are now being held in the same facility as suspected Al Qaeda members, eliminating the separation between the two groups.[14]
The January memorandum raises a host of legal questions and concerns. First, it is unclear whether the administration is maintaining that the facility as Guantanamo Bay is considered the United States for removal purposes, as the Immigration and Nationality Act only references removal of migrants from within the United States.[15] In addition, the Department of Defense does not have authority over migrants detained at the facility, given that its very narrow legal power comes from the 2001 Authorization for Use of Military Force, or the AUMF, which only applies to those detained pursuant to armed conflict between the United States, Al Qaeda, and associated forces.[16] Thus, it is unclear what legal authority the Trump administration is using to justify its unprecedented actions. Most alarming, however, is the question of what rights will be afforded to the migrants once transferred to the MOC. The Center for Constitutional Rights notes that “although past U.S. presidents have used Guantanamo to try to create a legal black hole outside the jurisdiction of U.S. courts… people detained there are, in fact, entitled to rights under both the U.S. Constitution and international law, including the right to a lawyer.”[17]
According to The Guardian, as of February 20, 2025, more than 150 migrant men have been sent to Guantanamo from within the United States.[18] What their future holds at the facility is unclear.
[1] White House, Expanding Migrant Operations Center At Naval Station Guantanamo Bay To Full Capacity (2025).
[2] Id.
[3] Id.
[4] Jonathan Hafetz & Rebecca Ingber, What Just Happened: At Guantanamo’s Migrant Operation Center, Just Security (Feb. 6, 2025), https://www.justsecurity.org/107405/what-just-happened-guantanamo/.
[5] Will Weissert, While Signing Laken Riley Act, Trump Says He’ll Send ‘Worst Criminal Aliens’ to Guantanamo, AP News (Jan. 29, 2025), https://apnews.com/article/trump-signs-laken-riley-act-immigration-crackdown30a34248fa984d8d46b809c3e6d8731a.
[6] “Beyond the Pale” – IRAP Denounces Trump Plan to Expand Detention of Migrants at Guantanamo Bay, Int’l Refugee Assistance Project (Jan. 30, 2025), https://refugeerights.org/news-resources/beyond-the-pale-irap-denounces-trump-plan-to-expand-detention-of-migrants-at-guantanamo-bay.
[7] Maria Ramirez Uribe, The US Held Migrants at Guantanamo Before. Is Trump’s Approach Different?, Al Jazeera (Feb. 11, 2025), https://www.aljazeera.com/news/2025/2/11/the-us-held-migrants-at-guantanamo-before-is-trumps-approach-different.
[8] Hafetz & Ingber, supra note 4.
[9] Id.
[10] Id.; see generally Harold Hongju Koh, The Human Face of the Haitian Interdiction Program, 33 Va. J Int’l L. 483 (1992). Harold Koh, a Yale law professor, sued the United States government over the treatment of Haitian refugees at Guantanamo Bay noting that the refugees did not have access to lawyers to help them seek asylum while in detention. Id.
[11] Hafetz and Ingber, supra note 4.
[12] Hamed Aleaziz et al., U.S. Is Holding Migrants in Cells That Once Held Al Qaeda Suspects, N.Y. Times (Feb. 5, 2025), https://www.nytimes.com/2025/02/05/us/politics/migrants-trump-guantanamo-prison.html.
[13] Id.
[14] Id.
[15] Hafetz & Ingber, supra note 4.
[16] Id.
[17] As Trump Begins Detaining Immigrants at Guantanamo, Rights Groups Demand Information About Plan, Ctr. for Const. Rts. (Feb. 6, 2025), https://ccrjustice.org/home/press-center/press-releases/trump-begins-detaining-immigrants-guant-namo-rights-groups-demand.
[18] José Olivares, Revealed: US Firm Running Guantanamo Migrant Jail Accused Over Rights Abuses, Guardian (Feb. 20, 2025), https://www.theguardian.com/us-news/2025/feb/20/guantanamo-migrant-jail-akima-revealed.