Undocumented Immigrants and Guantánamo Bay: An International and Constitutional Law Violation?

Donald Trump, serving as both the 45th and 47th President of the United States, was sworn into office for his second term on January 20th, 2025. Central to his campaign was a hardline status on immigration, including promises of mass deportations and stricter enforcement policies. Shortly after taking office, his administration moved aggressively to implement these measures. One of the most controversial is the detention of undocumented immigrants at Guantánamo Bay– a facility historically used to hold terror suspects. This policy has drawn significant legal and humanitarian criticism. Despite the U.S. government’s justification for the practice, detaining migrants at Guantánamo Bay undermines constitutional due process rights, violates international law, and sets a dangerous precedent for the treatment of asylum seekers and migrants.

The Trump administration’s decision to detain undocumented immigrants at Guantánamo Bay not only strips them of their fundamental rights but also violates established constitutional protections. Reports from advocacy groups and investigative journalists reveal that detainees have been transferred to Guantánamo without clear charges and denied communication with both attorneys and family members [1]. According to ProPublica, immigrant detainees are being held in legal limbo. The American Civil Liberties Union (ACLU) has filed lawsuits arguing that this practice is both unprecedented and flagrantly unconstitutional. As the ACLU explains, “the U.S. Constitution gives the detainees rights to legal representation that shouldn’t be stripped away just because they have been moved to Guantanamo” [2]. As legal experts have also pointed out, never before has the U.S. government taken individuals from U.S. soil, transferred them to Guantánamo, and then stripped them of legal counsel.

These practices directly violate the Fifth Amendment’s guarantee that “no person shall be…deprived of life, liberty, or property, without due process of law” [3]. While some argue that undocumented immigrants lack constitutional protections, Supreme Court precedents confirm otherwise. In Zadvydas v. Davis (2001), the Court ruled that due process rights extend to noncitizens physically present in the United States, stating explicitly that “the Due Process Clause applies to all persons within the United States, including aliens, whether their presence is lawful, unlawful, temporary, or permanent” [4]. Furthermore, the Court emphasized that “a statute permitting indefinite detention would raise serious constitutional questions,” making clear that a prolonged detention without the prospect of removal violates fundamental rights, making the Trump administration’s use of Guantánamo Bay constitutionally suspect.

Furthermore, the Supreme Court’s decision in Boumediene v. Bush (2008) reinforced that detainees at Guantánamo Bay have a constitutional right to challenge their detention through habeas corpus. The Court explicitly held that the Suspension Clause of the Constitution protects noncitizens held at Guantánamo, rejecting the government’s argument that the naval base’s location outside of formal U.S. borders exempts it from constitutional scrutiny [5]. The ruling made clear that “the MCA operates as an unconstitutional suspension of [habeas corpus],” affirming that detainees cannot be deprived of their fundamental right merely because they have been labeled as energy combatants or held at an overseas military base [6]. By holding immigrant detainees at Guantánamo without legal representation or the ability to challenge their detention, the Trump administration is not only violating well-established legal precedent but also undermining the fundamental principles of constitutional due process.

Some might argue that the government can suspend habeas corpus rights during extraordinary times, such as national emergencies. The Constitution permits suspension of habeas corpus “when in cases of rebellion or invasion the public safety may require it” [7]. The Trump administration has consistently framed migration as a national security and public safety crisis to justify extraordinary enforcement measures. However, under constitutional standards, it is not enough for the government to declare a crisis: the suspension of habeas corpus is permitted only in the face of an actual rebellion or invasion, including threats of a hostile force against the United States. The presence of asylum seekers and undocumented migrants does not meet this threshold. Historically, suspension of habeas corpus has occurred only in extreme circumstances, such as President Lincoln’s Civil War-era proclamation in 1862 during an active domestic insurrection [8]. Even after the September 11th attacks, President Bush’s attempt to limit habeas corpus for enemy combatants was ultimately overturned in Boumediene v. Bush (2008). In light of this history, the Trump administration’s use of Guantánamo to detain undocumented migrants reflects not a lawful response to rebellion or invasion, but a distortion of emergency powers.

The indefinite detention of migrants at Guantánamo Bay also breaches multiple international legal obligations, including the 1951 Refugee Convention, its 1967 Protocol, and the International Covenant on Civil and Political Rights (ICCPR). The 1951 Refugee Convention, which the United States has signed, establishes critical protections for asylum seekers, ensuring they are not subjected to punitive detention [9]. The convention asserts that “a refugee should not be returned to a country where they face serious threats to their life or freedom” and outlines minimum standards for their treatment, including the right to housing, work, and education​ [10]. Detaining asylum seekers indefinitely at Guantánamo, a facility known for holding terror suspects, clearly violates these principles, treating them as criminals rather than individuals seeking protection. The 1967 Protocol Relating to the Status of Refugees extends these protections to all refugees, regardless of when they fled their home countries, and commits signatory states, including the United States, to apply the 1951 Convention’s safeguards. The Protocol mandates that states “apply articles 2 to 34 inclusive of the Convention” to all refugees within their jurisdiction [11]. However, the Trump administration's policy of detaining asylum seekers at Guantánamo Bay directly contradicts this commitment by placing them in a facility far from legal advocates and proper asylum procedures. This treatment denies them the opportunity to seek protection under U.S. asylum law, violating both the spirit and the letter of the Refugee Convention.

Additionally, the International Covenant on Civil and Political Rights (ICCPR), which the United States ratified, prohibits arbitrary detention and affirms that “no one shall be subjected to arbitrary arrest or detention” [12]. Article 9 further guarantees that “anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court” [13]. The indefinite confinement of migrants at Guantánamo, without formal charges or meaningful legal review, is a clear violation of these provisions. Furthermore, Article 10 mandates that “all persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person” [14]. Given Guantánamo Bay’s history of human rights abuses and the lack of transparency regarding detainee treatment, the Trump administration’s policy almost certainly fails to meet this standard, placing the U.S. in violation of its international legal obligations. The U.S. government’s failure to uphold these commitments not only endangers the rights of detained migrants, but also weakens its credibility as a nation that claims to uphold human rights and the rule of law.

By expanding the use of Guantánamo Bay for migrant detention, a dangerous legal precedent that undermines constitutional rights, weakens international human rights norms, and erodes the rule of law under the Trump administration emerges. One of the most alarming consequences of this policy is the erosion of habeas corpus and due process protections. By holding migrants indefinitely at Guantánamo, the Trump administration risks weakening the applicability of Boumediene v. Bush (2008), which affirmed that detainees at Guantánamo have a constitutional right to challenge their detention through habeas corpus. If left unchecked, this policy could open the door for future legal justifications of mass detentions without judicial oversight, a dangerous expansion of executive power that threatens both noncitizens and U.S. citizens alike.

This expansion also sets a precedent for a “two-tiered” legal system, in which an individual’s legal rights are determined by their location rather than their personhood. This contradicts the Supreme Court’s ruling in Rasul v. Bush (2004), which rejected the government’s claim that Guantánamo detainees had no right to habeas corpus because the base was outside of U.S. sovereignty. The court held that the degree of control the United States exercises over Guantánamo is sufficient to trigger constitutional protections, affirming that “the right to habeas corpus is not dependent on citizenship status” and can be exercised in “all ... dominions under the sovereign’s control” [15]. The Trump administration’s detention policy directly undermines this precedent by reviving the argument that migrants held at Guantánamo are beyond the reach of constitutional protections. This not only contradicts the Supreme Court rulings but also creates a dangerous legal framework in which basic rights could be denied simply based on the government’s choice of detention location.

The U.S. government might argue that detaining undocumented individuals at Guantánamo Bay is lawful under the President’s broad authority over immigration and national security. In Trump v. Hawaii (2018), the Supreme Court upheld the President’s power to restrict entry into the United States, citing Section 1182(f) of the Immigration and Nationality Act, which grants the executive branch “broad discretion” to suspend the entry of non-citizens when deemed necessary for national interests [16]. The Court found that the travel restrictions imposed by the Trump administration were “a lawful exercise of the president’s statutory authority” and emphasized the judiciary’s deference to executive decisions related to national security [17]. Proponents of migrant detention at Guantánamo may invoke this ruling to argue that the President has the authority to determine where and how non-citizens are held before adjudicating their immigration status, especially in cases where national security is concerned.

However, while Trump v. Hawaii affirmed the President's discretion in controlling entry, it does not provide blanket authority to violate constitutional rights or established international obligations. The key distinction lies in the difference between restricting entry and detaining individuals indefinitely without due process. The Supreme Court’s decision in Boumediene v. Bush (2008) reaffirmed that non-citizens held at Guantánamo Bay have a constitutional right to challenge their detention through habeas corpus [18]. Similarly, Rasul v. Bush (2004) rejected the argument that Guantánamo detainees have no legal rights [19]. Expanding Guantánamo’s use for migrant detention would effectively circumvent these rulings by placing asylum seekers and other migrants outside the reach of normal legal protections. While Trump v. Hawaii upheld restrictions on entry for national security reasons, it did not authorize mass detention of noncitizens in a facility historically used for terror suspects.

The Trump administration’s use of Guantánamo Bay for migrant detention sets a dangerous precedent that threatens constitutional rights and international legal norms. By circumventing habeas corpus and due process, this policy undermines the rule of law and opens the door for future administrations to justify indefinite detention beyond immigration. If asylum seekers and undocumented individuals can be detained without legal protections, what prevents this rationale from being applied to other vulnerable groups? The long-term consequences of this policy extend far beyond immigration, posing a direct challenge to fundamental principles of justice and equal protection under the Constitution.

Bibliography

[1] Trevizo, Perla, and Mica Rosenberg. “Trump Is Unfairly Detaining Immigrants at Guantanamo as Terrorists, Families Say.” ProPublica, February 13, 2025. https://www.propublica.org/article/trump-administration-migrants-guantanamo-bay.

[2] Ibid.

[3] Zadvydas v. Davis. Legal Information Institute, 2001. https://www.law.cornell.edu/supct/html/99-7791.ZS.html.

[4] Ibid.

[5] Boumediene v. Bush. Oyez, 2008. https://www.oyez.org/cases/2007/06-1195. In Boumediene, the Supreme Court ruled that noncitizens held at Guantánamo Bay have constitutional rights under the Suspension Clause to seek habeas corpus review. The Court found that the Military Commissions Act’s restrictions on habeas corpus were unconstitutional, emphasizing that constitutional protections extend to offshore U.S. detention facilities.

[6] Ibid.

[7] U.S. Const. art. I, § 9, cl. 2.

[8] Longley, Robert. “Why Did Lincoln and George W. Bush Suspend Habeas Corpus?” ThoughtCo, November 2, 2022. https://www.thoughtco.com/bush-lincoln-both-suspended-habeas-corpus-3321847.

[9] “The 1951 Refugee Convention,” UNHCR US, accessed March 16, 2025, https://www.unhcr.org/us/about-unhcr/overview/1951-refugee-convention.

[10] Ibid.

[11] Protocol Relating to the Status of Refugees. United Nations Human Rights: Office of the High Commissioner. Accessed March 16, 2025. https://www.ohchr.org/en/instruments-mechanisms/instruments/protocol-relating-status-refugees.

[12] Ibid.

[13] International Covenant on Civil and Political Rights. United Nations Human Rights: Office of the High Commissioner. Accessed March 16, 2025. https://www.ohchr.org/en/instruments-mechanisms/instruments/international-covenant-civil-and-political-rights.

[14] Ibid.

[15] Rasul v. Bush. Oyez, 2004. https://www.oyez.org/cases/2003/03-334. In Rasul, the Supreme Court held that U.S. courts have jurisdiction to hear habeas corpus petitions from foreign nationals held at Guantánamo Bay. The Court reasoned that because the United States exercises complete control over the base, detainees have the right to challenge their detention despite not being U.S. citizens.

[16] Trump v. Hawaii. Oyez, 2018. https://www.oyez.org/cases/2017/17-965.

[17] Ibid.

[18] Boumediene v. Bush. Oyez, 2008. https://www.oyez.org/cases/2007/06-1195.

[19] Rasul v. Bush. Oyez, 2004. https://www.oyez.org/cases/2003/03-334.