A couple days after President Trump bloviated about using Guantanamo as an open-air prison for migrants, I sent a proposed column to the Washington Post that opened with these lines:
Don’t be fooled by President Trump’s threat to ship 30,000 immigrants from the United States to Guantanamo. I was lead counsel in the Supreme Court case that granted post-9/11 prisoners at Guantanamo the right to challenge their detention in federal court. I’ve represented prisoners there for more than two decades and was at the base a few weeks ago, visiting my client, Abu Zubaydah, The Forever Prisoner.
I can tell you, Trump’s plan will never happen.
Shortly after I confidently predicted that nothing would happen, the administration shipped the first group of migrants to the base.
I never did hear back from the Post.
But of course, his Guantanamo threat has come to naught. That first group of migrants were quickly repatriated to Venezuela, and a small, second group was returned to the United States a few days ago. So far as I am aware, there are once again no migrants being held at the base from the mainland. Total cost for this short-lived fiasco? Sixteen million dollars.
Between the bang and the whimper, the whole project was beset by the same sort of screw-ups that plagued Guantanamo when the Bush administration decided to use it for post-9/11 prisoners. For example, it turns out the tents hastily constructed by the Department of Defense did not meet the standards set by the Department of Homeland Security, which you think they could’ve figured out before they spent more than $3 million per tent.
But the fact that Guantanamo 2.0 has flamed out, spectacularly, doesn’t mean Trump’s performative prancing is unimportant. On the contrary, it’s part of something critical to his project, and that’s what we should focus on.
There are at least two reasons why the Trump administration will never build a city-sized immigrant detention center at Guantanamo (though some in his administration may want precisely that). To begin with, prisoners bring their rights with them wherever they are transported. As much as the President might wish it were otherwise, the United States can’t strip people of their rights by shipping them abroad. If that were the rule, the government could reduce the Constitution to empty lines on a page by transferring a person from a cell in Indiana to a ship in the Indian Ocean.
That means the Trump administration can’t just throw immigrants in a Cuban cage and forget about them. They’d have to build a detention center that satisfied constitutional standards, which they have so far failed to do. And we’d have to fly in attorneys, lots of attorneys, all of whom would need a security clearance to get to the base. In the end, the cost would be astronomical. And all of it would be completely unnecessary, since we can already handle these cases on the mainland.
In addition, because immigration detainees are protected by the Due Process Clause of the 5th Amendment, if Trump brought them to the base, he might just deliver the Due Process Clause to all the foreign nationals held there, including the 15 remaining post-9/11 detainees. That would almost certainly render those detentions illegal, which is why Presidents Bush, Obama, Trump (I) and Biden all fought tooth and nail to keep the Due Process Clause from taking root on Guantanamo’s rocky soil. Wouldn’t it be a hoot if President Trump, in his eagerness to cast immigrants out, gave Khalid Sheikh Mohammed the gift of the Constitution?
All of this means that Trump’s vow to ship immigration detainees from the United States to Guantanamo was always like his 2016 vow “to load [Guantanamo] up with some bad dudes”: Sound and fury, and nothing more. (Two prisoners were released from Guantanamo during his first term and none were added.)
But I suspect Trump knows all this and doesn’t care. More than any president in modern memory, Trump understands that the real power of the presidency is the ability to shape the endless national conversation about who we are as a people. It doesn’t matter that Guantanamo will never be used for more than a few dozen migrants from the mainland, and then for only a few days at a time, just as it doesn’t matter that his attack on birthright citizenship has been beaten back by the courts or that most of his proclamations are quickly enjoined.
His goal is much bigger than any Executive Order. The lawyers in his circle probably understand that his Executive Orders are nearly all illegal—at least, the smart ones do—but that doesn’t concern them. Trump isn’t trying to make law; he’s trying to remake the country. He wants nothing less than to change the shared picture in our heads about what it means to be an American, about who does and who doesn’t get a seat at the national table.
And in today’s America, the most recognizable metaphor for this is Guantanamo.
Though his underlings quickly began to scurry around Cuba preparing for people who would never arrive, Trump’s pronouncement was never a serious suggestion that immigration detainees from the mainland be imprisoned at Guantanamo. Instead, it is Trump’s way of saying that people who come to this country without legal authority must be cast beyond the pale—that they have no legitimate claim to be among us and should be treated like the pariahs they are. In today’s world, to say that someone should be held at Guantanamo is not simply a statement about their legal rights. It is meant to mark them as truly the Other, to designate them as less than human—a thing without dignity.
In this respect, Trump uses Guantanamo not as a noun, but as a verb; not as a place, but as a condition to be endured. He is saying these people should be Guantanamoed. To Guantanamo is to treat as vermin.
And that is the horror of our moment: We have a president who would wish this on fellow human beings, we have a reality that allows him to conceive it, and we have a political class that does nothing to stop it.
As always, and in the spirit of thoughtful conversation, if you have any reactions to this or any of my essays, feel free to share them with me at jm347@cornell.edu.
