In Guantánamo, the law has never been a red line for the US

Trump’s plan to detain migrants follows a long history of the US locking up vulnerable people at the camp

by Diana Cariboni Feb. 25, 2025, Open Democracy

Trump orders Guantánamo to be ready for immigrants

Seven days into his second administration, Donald Trump ordered the preparation of the US naval base in Guantánamo Bay, Cuba, to detain up to 30,000 immigrants. So far, 177 Venezuelans labelled “illegal aliens” have been transferred to the base in shackles and deported to their country days after. Another 17 migrants were sent to Guantánamo last Sunday.

Trump’s decision sparked outrage, and rightly so. But, none of this is anything new in Guantánamo.

I arrived in Guantánamo as a reporter on 27 January 2017, just a week after Trump became president for the first time. In his campaign, he had said “torture works” and promised to fill the illegal military prison with “bad dudes”. Soon after his election win, the prison’s commander Peter Clarke convened his officers at the US military base’s open-air cinema to address their concerns.

By then, Barack Obama’s administration had attempted the shutdown of the prison, where up to 780 Muslim men (and children) allegedly involved in terrorist activities had been indefinitely detained by the George W. Bush government in the 2000s. At the time of my visit, 41 prisoners remained – 15 are still there today.

Bush chose Guantánamo, “the legal equivalent of outer space”, to dodge the Geneva Conventions for the treatment of the prisoners of war and the US courts and constitution. Detainees were “illegal combatants” and deserved no rights at all. In many cases, they were tortured to obtain doubtful intelligence and evidence that would never be admissible in court.

In 2015, after many high-profile investigations into the practices of CIA ‘black sites’ including Guantánamo, a federal law banned torture. It was about time. But nothing else really changed during the Obama years. His administration reduced the number of Guantánamo detainees, sending dozens back to their or third countries, and ordered the military officers overseeing the prison to grant the rest their rights under the Geneva Conventions. They would be prisoners until the end of the war on terror. Forever prisoners.

In the 2017 meeting at the Guantánamo cinema, an officer asked Clarke about Trump ordering a comeback of torture. The commander answered: “I think there is zero chance that I'm going to get an order that I'm going to have to say, ‘that it's not a legal order and I'm not gonna follow it’, which is ultimately what would happen. Okay? Because somewhere else buried in the Constitution is that right, that responsibility, for us as leaders, for us in uniform, to carry out legal orders. And torturing somebody would not be a legal order.”

Two months later, I and other colleagues reporting in Guantánamo pressed Clarke on this, and he was far less expansive: “I just said we should wait to know what the new policy would be. Campaign statements are just that. We will continue conducting detention in a safe and humane manner, coherent with international law and national laws and policies”.

Like Obama, Trump did not fulfill his campaign promise. No more prisoners were sent to Guantánamo during his first term, and torture didn’t come back – though the force-feeding of hunger strikers, the isolation and the indefinite detention of people without charges continued, all of which are considered cruel, inhuman or degrading treatment by the international humanitarian law.

But the law has never been a red line for Trump or the United States when it comes to the bay’s naval base, strategically situated on the south-eastern coast of Cuba, in the dry and poverty-stricken eastern province of Guantánamo.

The base is a remnant of the Spanish-American war and the US intervention in the Cuban independence war against the Spanish colonial rule – a poisoned chalice embodied in the 1901 Platt amendment that made Cuba a US protectorate.

The US occupation of Guantánamo Bay started formally in 1903 and was later regulated by a 1934 treaty. Under the agreement, Cuba leases the area to the US for a few thousand dollars a year – though the payment is symbolic, with Cuba refusing to cash the annual cheque in protest of what it feels is the US’s “illegal” occupation of the site. The lease can only be terminated if agreed by both parties or if the US abandons the base.

All of this makes Guantánamo both the oldest US military outpost and the only one rejected by the host country. Washington recognises Cuban sovereignty over that patch of land and sea, which it has conveniently used to deny people locked up there – migrants, foreign civil workers, asylum seekers, suspects of terrorism – rights granted by the US Constitution and international law. A legal limbo.

As I wrote in my 2017 book about six former Guantánamo prisoners transferred to Uruguay, ‘Guantánamo entre nosotros’ (which translates as ‘Guantánamo among us’ in English), the base had been a giant open-air jail for tens of thousands of Haitians and Cubans fleeing their countries years before Bush opened the illegal prison for suspects of terrorism in 2002.

The 1991-94 Haitian refugee crisis erupted after a coup d’etat against democratic president Jean-Bertrand Aristide. The US Coast Guard intercepted more than 38,000 people who left the country by sea during the first six months, sending them either to overcrowded camps in Guantánamo, where living conditions were deplorable, or back to Haiti.

Only 10,500 were allowed to pursue asylum claims in the US after being screened by US naval officials. The screenings included HIV tests, and those who tested positive were required to meet a higher standard of “well-founded fear” of persecution in order to not be sent back to Haiti. Up to 250 HIV-positive refugees were then placed in a separate camp at Guantánamo, making the US the only country to have a prison camp exclusively for HIV-positive persons.

In 1993, a US judge ordered the Bill Clinton administration to shut the HIV detention centre and give the prisoners proper healthcare and access to legal defence to pursue their asylum requests. The judge said locking the Haitians under “arbitrary and indefinite detention” was a violation of their rights to due process, and their continued imprisonment, he added, “serves no purpose other than to punish them for being sick”.

It was the first time the US judiciary ordered the government to close a detention centre in Guantánamo. But through the years, Washington has relentlessly refused to do so. Quite the opposite, one administration after another has taken advantage of the legal black hole the US carved itself.

As the Haitian crisis evolved, another began: thousands of Cuban balseros (rafters) ventured to the sea in makeshift boats once the president of Cuba, Fidel Castro, lifted a ban on emigration in August 1994. People fled from political repression and the serious economic recession experienced by the country (known as the ‘Special Period’), whose ailing economy had lost its crutches after the implosion of the Soviet Union in 1991.

Hundreds of thousands had left Cuba for the US since the 1959 revolution, and they were generally well-received. But fearing a flow of new migrants, the Clinton administration ordered to intercept the balseros at sea and send them to Guantánamo. In less than two months, more than 32,000 Cubans were captured and held in detention camps, separated from the Haitian migrants.

At its peak in 1994, Guantánamo had nearly 50,000 refugees living in tents, with no tap water and a lack of food, hygiene or proper system for leaving and being admitted into the US. Protests erupted. Rebels were locked in a separate area that the military named Camp X-Ray.

While some Cubans were sent to Panamá, most were eventually granted permission to live in the US. By 1996, there were no migrants locked in Guantánamo. Only Camp X-Ray remained – the site and the name of what would become the first experiment of a military prison for suspects of terrorism.

If you’re old enough, you may remember images of Camp X-Ray: prisoners in orange jumpsuits, handcuffed and chained, their faces covered by masks and blindfolds and their hands cuffed together in mittens, sitting on their knees in an unbearable position in open-air cages surrounded by razor wire, under military watch. If you’re not, you can google them.

Back to my 2017 visit to Guantánamo. Commander Clarke and his officers told reporters it was important for us to send the message that prisoners were then being treated humanely and according to the Geneva Conventions, one of whose articles establishes that “prisoners of war must at all times be protected [...] against insults and public curiosity”. For this reason, he argued, we couldn’t talk to the men nor photograph her faces.

We could, instead, watch, take pictures and record them (taking care not to show their faces). We could peep at the men through a dark, one-way window, and were instructed to be silent so that they wouldn’t know they were being watched as they prayed and had supper in a communal space in Camp VI. We just couldn’t talk or interview them. We couldn’t make their voices heard – a curious interpretation of what “public curiosity” is.

A short video posted on X by the current White House shows how US authorities dehumanise and mock undocumented migrants, who are seen being shackled as they board a deportation flight. Captioned ‘ASMR: Illegal Alien Deportation Flight’, the video includes footage of chains jingling as they’re pulled from a box and attached to a person. ASMR stands for “autonomous sensory meridian response” and is used to describe a pleasant physical feeling triggered by videos with unusual sounds.

Lawless cruelty isn’t new, but it can get worse.

Reprint CC BY-NC 4.0

James F. Stephens, J.D. – Medium

Read writing from James F. Stephens, J.D. on Medium. Historian, J.D., writing, curating, and publishing from the Berkshires about history, ethics, and justice.

MediumJames F. Stephens, J.D.