A pair days after President Trump bloviated about utilizing Guantanamo as an open-air jail for migrants, I despatched a proposed column to the Washington Publish that opened with these traces:
Don’t be fooled by President Trump’s risk to ship 30,000 immigrants from the US to Guantanamo. I used to be lead counsel within the Supreme Court docket case that granted post-9/11 prisoners at Guantanamo the appropriate to problem their detention in federal courtroom. I’ve represented prisoners there for greater than twenty years and was on the base just a few weeks in the past, visiting my consumer, Abu Zubaydah, The Endlessly Prisoner.
I can inform you, Trump’s plan won’t ever occur.
Shortly after I confidently predicted that nothing would occur, the administration shipped the primary group of migrants to the bottom.
I by no means did hear again from the Publish.
However in fact, his Guantanamo risk has come to naught. That first group of migrants have been shortly repatriated to Venezuela, and a small, second group was returned to the US just a few days in the past. As far as I’m conscious, there are as soon as once more no migrants being held on the base from the mainland. Complete price for this short-lived fiasco? Sixteen million {dollars}.
Between the bang and the whimper, the entire venture was beset by the identical form of screw-ups that plagued Guantanamo when the Bush administration determined to make use of it for post-9/11 prisoners. For instance, it seems the tents swiftly constructed by the Division of Protection didn’t meet the requirements set by the Division of Homeland Safety, which you suppose they may’ve discovered earlier than they spent greater than $3 million per tent.
However the truth that Guantanamo 2.0 has flamed out, spectacularly, doesn’t imply Trump’s performative prancing is unimportant. Quite the opposite, it’s a part of one thing essential to his venture, and that’s what we must always give attention to.
There are at the very least two the explanation why the Trump administration won’t ever construct a city-sized immigrant detention heart at Guantanamo (although some in his administration might want exactly that). To start with, prisoners convey their rights with them wherever they’re transported. As a lot because the President may want it have been in any other case, the US can’t strip individuals of their rights by transport them overseas. If that have been the rule, the federal government might cut back the Structure to empty traces on a web page by transferring an individual from a cell in Indiana to a ship within the Indian Ocean.
Which means the Trump administration can’t simply throw immigrants in a Cuban cage and neglect about them. They’d must construct a detention heart that glad constitutional requirements, which they’ve up to now did not do. And we’d must fly in attorneys, a lot of attorneys, all of whom would wish a safety clearance to get to the bottom. Ultimately, the price could be astronomical. And all of it will be fully pointless, since we will already deal with these instances on the mainland.
As well as, as a result of immigration detainees are protected by the Due Course of Clause of the fifth Modification, if Trump introduced them to the bottom, he may simply ship the Due Course of Clause to all of the overseas nationals held there, together with the 15 remaining post-9/11 detainees. That might nearly definitely render these detentions unlawful, which is why Presidents Bush, Obama, Trump (I) and Biden all fought tooth and nail to maintain the Due Course of Clause from taking root on Guantanamo’s rocky soil. Wouldn’t it’s a hoot if President Trump, in his eagerness to forged immigrants out, gave Khalid Sheikh Mohammed the present of the Structure?
All of which means Trump’s vow to ship immigration detainees from the US to Guantanamo was at all times like his 2016 vow “to load [Guantanamo] up with some unhealthy dudes”: Sound and fury, and nothing extra. (Two prisoners have been launched from Guantanamo throughout his first time period and none have been added.)
However I believe Trump is aware of all this and doesn’t care. Greater than any president in fashionable reminiscence, Trump understands that the true energy of the presidency is the flexibility to form the limitless nationwide dialog about who we’re as a individuals. It doesn’t matter that Guantanamo won’t ever be used for quite a lot of dozen migrants from the mainland, after which for only some days at a time, simply because it doesn’t matter that his assault on birthright citizenship has been crushed again by the courts or that the majority of his proclamations are shortly enjoined.
His objective is way larger than any Govt Order. The attorneys in his circle most likely perceive that his Govt Orders are practically all unlawful—at the very least, the sensible ones do—however that doesn’t concern them. Trump isn’t attempting to make legislation; he’s attempting to remake the nation. He needs nothing lower than to vary the shared image in our heads about what it means to be an American, about who does and who doesn’t get a seat on the nationwide desk.
And in immediately’s America, probably the most recognizable metaphor for that is Guantanamo.
Although his underlings shortly started to scurry round Cuba making ready for individuals who would by no means arrive, Trump’s pronouncement was by no means a critical suggestion that immigration detainees from the mainland be imprisoned at Guantanamo. As an alternative, it’s Trump’s method of claiming that individuals who come to this nation with out authorized authority should be forged past the pale—that they haven’t any authentic declare to be amongst us and ought to be handled just like the pariahs they’re. In immediately’s world, to say that somebody ought to be held at Guantanamo shouldn’t be merely a press release about their authorized rights. It’s meant to mark them as actually the Different, to designate them as lower than human—a factor with out dignity.
On this respect, Trump makes use of Guantanamo not as a noun, however as a verb; not as a spot, however as a situation to be endured. He’s saying these individuals ought to be Guantanamoed. To Guantanamo is to deal with as vermin.
And that’s the horror of our second: We’ve got a president who would want this on fellow human beings, we have now a actuality that permits him to conceive it, and we have now a political class that does nothing to cease it.
As at all times, and within the spirit of considerate dialog, when you have any reactions to this or any of my essays, be happy to share them with me at jm347@cornell.edu.
