By: Carol Morales Roca
Published: May 20, 2025
Under the scorching southern Cuban sun, Guantánamo Bay is now expected to house not only individuals seized during extraterritorial antiterrorism initiatives and Cuban and Haitian fleeing migrants seized at sea, but also a number of non-U.S. citizens.[1] This new influx of migrants to Guantánamo follows President Trump’s decision to “detain the worst criminal illegal aliens threatening the American people.”[2]
Starting in February of 2025, the Trump administration began sending non-citizens initially detained in the United States to its military base at Guantánamo Bay.[3] Although the administration claimed that it would send the “worst of the worst criminals,” authorities have failed to provide proof of this claim.[4] As of March 2025, the administration has sent over 200 non-citizens to Guantanamo to await deportation.[5] An alarming statistic shows that many of the detained non-citizens whose identities became public actually have no criminal records in the United States[6]
Can non-citizens lawfully be transferred to Guantánamo Bay?
Guantánamo Bay is an ambiguous place when it comes to legal matters. Even though the base is located on Cuba’s sovereign territory, much to the objection of the Cuban government, the United States has exclusive jurisdiction and control over what happens within the military base.[7] Moreover, the United States has continuously argued that Guantánamo exists outside of its immediate territorial sovereignty, resulting in detainees not being afforded any significant and procedural substantive legal protections under the Constitution.[8]
There is no dispute that Immigration and Customs Enforcement (“ICE”) can transfer non-citizens among different centers within the United States, but the Immigration and Nationality Act (“INA”) defines the geographic territory of the United States as the fifty states and the country’s territories, such as Puerto Rico.[9] The INA makes no mention of Guantánamo. Moreover, the INA does allow the government to transfer non-citizens to other countries, but within a specific limit: non-citizens may be moved to countries other than their country of origin only if the country accepts them—and Cuba has never granted the United States permission to send non-citizens to Guantánamo.[10]
With a lack of clear legal authority, the Trump administration may begin to claim inherent presidential power and even invoke notions of safeguarding national security if it continues to send non-citizens to Guantánamo Bay. These efforts may seem farfetched to some, but it is worth addressing the arguments as related lawsuits are filed and if Congress explicitly addresses the monetary logistics of running Guantánamo as an ICE detention center. So far, the Pentagon has spent over $21 million on flights to Guantánamo.[11] Senator Warren denounced the “[waste] of military resources to pay for his political stunts.”[12] No further comment has come from Congress regarding possible scenarios for the funding of this facility.
Is due process even possible for non-citizens in Guantánamo?
Every person on United States soil is afforded constitutional rights, including the right to due process and access to counsel.[13] Further, individuals intercepted by ICE are entitled to due process even if they lack legal status.[14] The first group of non-citizens that arrived at Guantánamo Bay were transferred to the base without any knowledge of where they were going.[15] Attorneys suing the administration on behalf of their clients at Guantánamo have claimed that they were denied any means of communication with family members and legal counsel while at the base.[16] In the United States, ICE detainees can seek legal counsel, request bond and/or parole, and challenge any adverse immigration decision in front of a judge.[17] While in Guantánamo, these rights are significantly reduced.[18] Only a handful of the detainees are able to speak to attorneys, and there is no opportunity for these individuals to defend their case before a court.[19]
While the exact number and identities of non-citizens who will be transported to Guantánamo Bay during the Trump administration remains uncertain, the continuing litigation and discussions over the expenditure of this undertaking becomes clearer by the day. Recently, civil rights attorneys have sued to stop the Trump administration from transferring ten non-citizens to Guantánamo Bay, and results remain pending.[20] While Congress has not decided whether to allocate funding for transfers to Guantánamo Bay, this immigration undertaking is no affordable matter—and President Trump’s transfer plan has already hit logistical and financial hurdles.[21] Since its opening in 2002, the United States has spent over seven billion dollars operating Guantánamo Bay.[22] The recent transfers to Guantánamo have proven to be extremely costly. The Department of Defense calculates the cost per flight hour as $20,756, while regular charter flights used by ICE cost $8,577 per hour.[23] Currently, the United States spends more than $540 million annually to detain less than forty individuals at Guantánamo.[24] While Congress has not been focused on the base’s high price tag in the past,[25] if non-citizens continue to be detained in this military base, Congress may finally address the costs of using Guantánamo for immigrant detention purposes.
Looking Forward
Senators who have visited the miliary base have denounced the Trump administration for its misuse of the U.S. military and the enormous cost for taxpayers.[26] The Administration’s insistence on the detainment of non-citizens in Guantánamo continues, however, and its disregard of questioning from Congress, attorneys, legal scholars, and the public as a whole is frustrating. One thing is certain: U.S. jurisprudence has established the rights of non-citizens time and time again, and the Trump administration cannot undo or violate what the Constitution, federal courts, and the legislature have recognized.
[1] Tom Phillips, ‘A human rights disaster’: immigrants sent into Guantánamo black hole despite no proof of crime, The Guardian (Feb. 14. 2025, 6:00 AM), https://www.theguardian.com/us-news/2025/feb/14/trump-guantanamo-bay-migrants.
[2] See John B. Bellinger III, Can the United States Send Undocumented Immigrants to Guantánamo Bay?, Council on Foreign Rels. (Feb. 4, 2025, 2:12 PM), https://www.cfr.org/expert-brief/can-united-states-send-undocumented-immigrants-guantanamo-bay.
[3] Phillips, supra note 1.
[4] Id.
[5] Carol Rosenberg, U.S. Has Spent $40 Million to Jail About 400 Migrants at Guantánamo, N.Y. Times (Mar. 31, 2025), https://www.nytimes.com/2025/03/31/us/politics/migrants-guantanamo-costs.html.
[6] Carol Rosenberg & Charlie Savage, Some Migrants Sent by Trump to Guantánamo Are Being Held by Military Guards, N.Y. Times (Feb. 12, 2025), https://www.nytimes.com/2025/02/12/us/gitmo-migrants-trump.html.
[7] Reyhan Harmanci, Guantánamo’s Status as ‘Not US’ Is Part of Its Appeal, Bloomberg (Feb. 14, 2025, 1:15 PM), https://www.bloomberg.com/news/newsletters/2025-02-14/guantanamo-s-ambiguous-status-is-appealing-to-presidents; Boumediene v. Bush, 553 U.S. 723, 753 (2008).
[8] See Boumediene v. Bush, 553 U.S. 723, 757-58 (2008) (discussing the doctrine of territorial incorporation).
[9] See 8 U.S.C. § 1101(M)(36).
[10] See 8 U.S.C. § 1231(a)(2) (authorizing detention and removal of non-citizens ordered removed).
[11] See Eleanor Watson, Pentagon spent $21 million of flights to Guantanamo Bay amid deportation effort, CBS News (May 12, 2025, 1:46 PM), https://www.cbsnews.com/news/pentagon-guantanamo-bay-flights-deportation-effort/
[12] See id.
[13] See Yick Wo v. Hopkins, 118 U.S. 356, 374 (1886); Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 212 (1953); see also Zadvydas v. Davis, 533 U.S. 678, 693 (2001).
[14] See Obed Manuel and A. Martinez, What basic rights do people have if ICE stops them? A lawyer explains, NPR (Mar. 28, 2025, 1:04 PM), https://www.npr.org/2025/03/28/nx-s1-5342461/ice-arrest-detention-legal-rights.
[15] Laura Romero, ‘The confinement is unbearable”: Migrants describe being held at Guantanamo, ABC News (Feb. 28, 2025, 5:06 AM), https://abcnews.go.com/US/confinement-unbearable-migrants-describe-held-guantanamo/story?id=119270282.
[16] Id.
[17] Know Your Rights: Immigrant’s Rights, ACLU, https://www.aclu.org/know-your-rights/immigrants-rights.
[18] Press Release, Int’l Refugee Assistance Proj., Groups Sue Trump Administration for Access to Immigrants Sent from U.S. to Guantánamo Bay (Feb. 12, 2025) (on file at https://refugeerights.org/news-resources/groups-sue-trump-administration-for-access-to-immigrants-sent-from-u-s-to-guantanamo-bay).
[19] Myah Ward, ACLU sues Trump over Gitmo migrant detainees’ access to attorneys, Politico (Feb. 12, 2025, 3:25 PM), https://www.politico.com/news/2025/02/12/aclu-trump-guantanamo-migrants-00203852.
[20] See John Hanna, Lawyers sue to stop Trump administration from sending 10 migrants to Guantanamo Bay, PBS News (Mar. 1, 2025, 6:34 PM), https://www.pbs.org/newshour/politics/lawyers-sue-to-stop-trump-administration-from-sending-10-migrants-to-guantanamo-bay.
[21] Courtney Kube, et al., Trump administration rethinking Guantánamo immigrant detention plan amid cost issues and power struggles, NBC News (Mar. 5, 2025, 7:00 AM), https://www.nbcnews.com/politics/national-security/trump-admin-rethinking-guantanamo-immigrant-detention-plan-rcna194274.
[22] Carol Rosenberg, At Millions Per Detainee, Guantánamo Prison Stuck in a Cycle of Costly Delays, N.Y. Times (Sept. 16, 2022), https://www.nytimes.com/2022/09/16/us/politics/guantanamo-bay-prison-cost.html.
[23] Kube, supra note 21.
[24] Leah Hebron, The high cost of Guantanamo’s ‘forever prisoners’, Hum. Rts. Watch (May 4, 2022, 2:13 PM), https://www.hrw.org/news/2022/05/04/high-cost-guantanamos-forever-prisoners.
[25] See Letta Tayler and Elisa Epstein, Legacy of the “Dark Side”, Hum. Rts. Watch (Jan. 9, 2022, 12:01 AM), https://www.hrw.org/news/2022/01/09/legacy-dark-side.
[26] See Andrea Castillo, “Misguided mission”: Senators blast detaining migrants at Guantanamo, L.A. Times (Mar. 29, 2025, 9:55 AM), https://www.latimes.com/politics/story/2025-03-29/guantanamo-deportations-trump-senators-padilla.