Can Trump Legally Transfer Migrants to Guantánamo Bay? Here’s What to Know

The Trump administration has started sending migrants from the United States to the American military base at Guantánamo Bay, Cuba, raising a series of legal questions over the government’s authority to do so and the basic rights of detainees.

More than 150 Venezuelans, so far, are believed to have been taken there. Already at least three lawsuits have been filed related to aspects of the policy, and rights groups are expected to mount a broader challenge.

Here is a closer look at some of the major legal issues.

Can migrants lawfully be transferred there?

It is unclear whether the government has legal authority to transfer migrants from the United States to Guantánamo, which is an odd and ambiguous place for legal purposes.

The base sits on Cuba’s sovereign territory, but the United States has exclusive jurisdiction and control over what happens there because of a perpetual lease and the rupture in relations between the United States and Cuba’s Communist government.

Normally, transfer authority comes from the Immigration and Nationality Act, which empowers the government to detain migrants who have final removal orders and are awaiting deportation.

There is no dispute that Immigration and Customs Enforcement can transfer them among its different holding facilities inside the United States while they await their removal from the country. But the act defines the geographic territory of the United States as the 50 states, Puerto Rico, Guam, the Virgin Islands and the Northern Mariana Islands. It does not include Guantánamo.

The act also empowers the government to transfer migrants to other countries — with a key limit: Migrants may only be moved to countries with which they have no personal connections if the receiving country’s government accepts them. But Cuba has not granted the United States permission to bring the Venezuelans to its soil.

Because there does not appear to be clear statutory authority to transfer migrants to Guantánamo, Ahilan T. Arulanantham, an immigration law professor at the University of California, Los Angeles, speculated that if there is litigation, the administration might claim that Mr. Trump has inherent presidential power under the Constitution to send migrants there.

But he expressed doubts about the viability of such a theory. Handling immigration was largely seen as a matter left to the states early in American history, he said, and only later in the 19th century did Congress create a larger role for the federal government.

What about legal authority to detain there?

A range of immigration law specialists said they had been scouring federal law for any clear source of governmental authority to detain noncitizens outside the United States for immigration purposes and could not find any.

To be sure, there are other detainees and migrants at Guantánamo, but the circumstances are different.

Some are terrorism suspects. But the government’s power to hold them there arises from a law Congress passed to authorize the use of military force against the perpetrators of the Sept. 11 attacks. The migrants are not Al Qaeda members.

The government has also for years intercepted Cuban and Haitian migrants in open waters and brought them to Guantánamo for screening, maintaining that they do not have rights under the Constitution or immigration laws because they never touched American soil.

Sometimes such people stay at the base for a lengthy period, during which they are housed at a migrant center and their movements are restricted. Even then, however, the government has denied that it is detaining them, arguing that they can always choose to go home.

Do they have a right to talk to lawyers?

A group of legal aid organizations sued the government last week seeking to make it give the migrants access to lawyers, to see whether the men wanted legal representation.

Everyone on U.S. soil has constitutional rights, even if they do not have legal status to lawfully be in the country. Those rights include due process and access to counsel. The plaintiffs argued that the migrants’ constitutional rights accompanied them to the Navy base.

As a practical matter, most of the migrants cannot talk to lawyers because they are being held without any means of communicating. The Justice Department has preliminarily agreed to let three who were named in that case, and whose relatives joined it as plaintiffs, talk to lawyers over the phone.

But it remains to be seen how the Trump administration will handle the broader case.

How long will they stay?

In announcing the first transfer flight, the Pentagon, in a statement, cast the operation as a “temporary measure” to secure the migrants “until they can be transported to their country of origin or other appropriate destination.” But if some get stuck at Guantánamo, additional questions about long-term immigration detention will arise.

U.S. immigration law says a noncitizen has to be deported within 90 days of a removal order. Sometimes, however, there is nowhere to send that person, and the clock runs out. It has been difficult to repatriate Venezuelans because of a breakdown in diplomatic relations between the United States and Venezuela’s authoritarian government.

In 2001, the Supreme Court ruled that the government generally cannot hold noncitizens in perpetual immigration detention. If they are subject to final removal orders but there is no prospect of deporting them, the court said, the government must eventually release them under supervision, with exceptions for those deemed to be a threat to public safety.

Those exceptions could be an out for some of the men. Mr. Trump and administration officials have portrayed the migrants as criminals and associates of a dangerous gang, Tren de Aragua. Pete Hegseth, the secretary of defense, has branded them the “worst of the worst.”

But it is not clear that the accusation is true for all of them. Congressional staff members, in a briefing, were told that the only actual criteria for being transferred to the base is being a Venezuelan citizen subject to a final removal order.

Does it matter that the military is guarding them?

On paper, the migrants are in the legal custody of ICE, but there are very few ICE officers at the base. While some of the migrants are being held in a lower-security facility handled by the Coast Guard, others are being held in a war-on-terror prison and guarded by the military. This raises several possible complications.

One centers on conditions of confinement. ICE has detailed rules for immigration detention facilities, like how much recreation time detainees must get. Much remains secret, and it is unclear to what extent the military guards — who previously handled wartime detainees under different operating procedures — are following ICE rules.

Another complication centers on legal restrictions for using troops for a law-enforcement task. The Posse Comitatus Act generally makes it a crime to use federal troops for policing purposes. Another law, the Insurrection Act, creates an exception to that ban, but Mr. Trump has not to date invoked it.

While the military has provided support to ICE in the past, its contribution has been limited to logistical and administrative help at the border, freeing up more ICE agents to go into the field — not engaging directly with migrants.

Carol Rosenberg contributed reporting from Miami.