Like his predecessors, President Trump has plans for Guantánamo Bay. It is somewhat odd, when you think about it, that the U.S. possesses a little sliver of Cuba that our country uses as a military prison. “How does Cuba feel about that?” you might wonder. Some assume that Cuba must have consented to the arrangement. “We lease the land from Cuba, so it is not against the will of Cuba,” one Quora user assured a questioner. In fact, while it’s true that there is technically a “lease,” the lease is essentially a fiction meant to justify the theft of a Cuban harbor and 45 square miles of land. The U.S. navy base and detention facility there is a peculiar place. It has a gift shop inside, a cafe that serves Starbucks drinks, and a McDonald’s, and it is surrounded by a Cuban minefield put in place by a government that detests the American presence there. (The Americans used to maintain landmines there, too, making it the largest minefield in the Western Hemisphere, which killed a number of both Americans and Cubans during the decades they were in the ground.) 

The “lease” was imposed on Cuba by force in 1903. The United States had captured Cuba from the Spanish and made it clear that it would only grant Cuba its independence if it agreed to “lease” Guantánamo Bay to the United States indefinitely. The U.S. sends the Cuban government a check for $4,085 every year, in accordance with the lease terms. The Cuban government refuses to cash the checks, on the reasonable grounds that the lease is a legal fiction designed to legitimize the theft of Cuban land. The U.S. has long made it clear that it does not believe Cuba has any right to cancel the lease and would forcibly resist any effort by Cuba to take its land back.

The first point to make about Guantánamo, then, is that the U.S. should not even have it in the first place. An agreement imposed by force has no legitimacy, and Cuba should be given its land back. Of course, the fact that something is illegal and immoral doesn’t mean the U.S. will stop doing it, and as with the ongoing U.S. blockade of Cuba (consistently condemned by nearly all of the countries of the world), the illegitimate occupation of Guantánamo continues despite being a flagrant infringement on the rights of our island neighbor. 

It is not like the U.S. actually needs Guantánamo. There is a naval base there, but it serves no strategic purpose. The former commander in chief of the U.S. Atlantic Command, Jack Sheehan, acknowledged that “Guantánamo serves no military purpose, affords no strategic advantage.” But because Guantánamo is entirely cut off from Cuba and from the United States, it provides a convenient place for presidents to operate in a legal no man’s land, and multiple presidents have used it as a storage unit for populations they don’t want inside the U.S. but either can’t or don’t want to expel entirely. 

George W. Bush (Bush II) was not the first to use the site as a dumping ground for unwanted people. His father, George H.W. Bush (Bush I), sent thousands of Haitian refugees there. They were fleeing the country after democratically elected President Aristide had been overthrown in a coup (a coup plotted by forces trained by the U.S.). This made them eligible for asylum. But Bush I did not wish to admit Haitian migrants, so he sent them to Guantánamo, which by May 1992 held over 12,500 of them. Many were sent back to Haiti, even those who may have been eligible for asylum (as A. Naomi Paik explains, this was a “practice that clearly violates both domestic and international law”). Some were deemed eligible for asylum, but because they had HIV, they were not admitted to the United States. The Bush I administration kept these HIV-positive inmates in a special prison camp of their own, where they were denied sufficient medical care—a judge reviewing the conditions said the attitude of the government was, roughly, that there is “no value in providing adequate medical care when a patient's illness is fatal.” (The judge wrote that “the Haitians' plight is a tragedy of immense proportion and their continued detainment is totally unacceptable.”) As Brandt Goldstein explains, while Bill Clinton indicated he intended to close down the HIV/AIDS prison, he changed his mind when in office, and the deplorable situation continued: 

The refugees remained, even after [Clinton] assumed office, in leaky barracks with poor sanitation, surrounded by razor wire and guard towers. They responded with a hunger strike, and after raucous protests against their confinement, a number were thrown in the naval brig as if they were criminals. … Worse still, federal authorities refused to release the sickest Haitians, even though military physicians on Guantanamo lacked the means to treat them. The Clinton White House justified this atrocious conduct in terms that sound strikingly familiar today. Justice Department attorneys maintained that foreigners held by the United States at Guantanamo Bay have absolutely no legal rights, whether under the Constitution, federal statutes, or international law. According to this logic, the Clinton White House was free to treat the detainees however it pleased. 

Goldstein notes that the Clinton administration actually successfully eliminated a court precedent that recognized some legal rights for Guantánamo detainees, believing that a president needed “maximum flexibility” when it came to the use of the facility. That “flexibility” became useful when George W. Bush decided to use the facility to house hundreds of people it suspected of terrorism but did not wish to actually prosecute in U.S. courts, either because it did not have enough evidence or because it had physically abused them during their custody. (Or even because the administration knew they were innocent!) 

The Bush II administration’s use of Guantanamo was a flagrant effort to avoid granting basic due process of law to criminal suspects. The administration used the facility as a torture chamber, subjecting prisoners to extreme cruelty. (A detainee has drawn pictures of the torture he endured.) Some of them were entirely innocent of any wrongdoing. It was a hideous violation of both domestic and international law, for which nobody has ever been held accountable. (The Obama administration famously said it wanted to “look forward,” not backward, as an explanation for not prosecuting torturers.) Bush II claimed the right to hold prisoners forever, without ever charging them with a crime or presenting any evidence against them in a court of law.

Eventually, lawyers for detainees were able to wangle some semblance of due process for Guantánamo victims. The overwhelming majority of detainees were eventually set free, although many endured a decade or more of imprisonment without charges. The facility still has 15 people in it, and none of them have had a legitimate conviction in a criminal court (some have been cleared for release, some are “forever prisoners,” and some have gone through a flawed military justice system). The U.N. condemned the conditions in Guantánamo under the Biden administration, with the Special Rapporteur concluding that “the vast majority of detainees continue to experience sustained human rights violations.” 

Now, the Trump administration is planning a vast new migrant detention camp at Guantánamo Bay which will hold up to 30,000 people. Planning seems chaotic, with sources telling the press that it’s unclear who is in charge. It seems very unlikely that people’s basic human rights will be respected when they are housed in the new tent city that Trump is building, in part because Trump has indicated a preference for deliberately humiliating and mistreating migrants, and in part because it is virtually impossible to house people in a giant, hastily-assembled tent city in even partway livable conditions. When Haitians were housed there in the 1990s, things got so bad that they staged an uprising. This was under a president marginally less sadistic than Donald Trump. God only knows how bad things could get under a leader who thinks of the people he is sending there as “animals.” 

Trump likely sees Guantánamo as a great place to keep people in a legal limbo. It has been described, even by members of the U.S. government, as a “land without law.” But as Jeffrey Kahn writes for The Nation, this is not actually true, because for decades human rights lawyers have been somewhat successful in fighting for greater transparency and legal process there. Kahn is optimistic that the Supreme Court will not “look favorably on the administration’s decision to move and hold thousands of people outside of its jurisdiction without any clear statutory authority to do so,” and sees Trump as acting on “the mistaken idea that [Guantánamo] is insulated from the scrutiny of the courts and the hope that the theatrics of detaining people alongside war-on-terror detainees will be effective as a piece of bellicose political messaging.” We shall see, but I think it is very risky to rely on a conservative Supreme Court to guarantee the human rights of non-citizens in a military prison. 

The correct course of action regarding Guantánamo Bay has been clear since 1903: get rid of the base, and give the territory back to Cuba (or rather, recognize Cuba’s legitimate sovereignty, since it is not the U.S.’s to “give back” in the first place). Guantanamo has, as Jonathan Hansen writes in his excellent Guantánamo: An American History, long “provided the laboratory and staging area where U.S. imperial ambition could be implemented beyond the scrutiny of the American public and the constraint of U.S. law.” If Trump were the anti-imperalist that some fantasize he is, he would never expand this lawless patch of imperial no-man’s-land. It is not surprising, however, that he wishes to turn the facility into a bigger prison than even George W. Bush attempted to make it. 

We should understand clearly that closing Guantánamo is, in and of itself, relatively meaningless. The fight over it during Obama’s administration was somewhat ludicrous. Obama intended to transport Guantánamo’s prisoners to the U.S. but wanted to maintain many of the practices that made Guantánamo objectionable in the first place like indefinite detention and military trials. This would have made the closure meaningless and entirely symbolic, but Republicans naturally accused Obama of coddling terrorists and wanting to bring dangerous criminals onto U.S. soil. The whole debate was, essentially, over whether Guantánamo would remain in Cuba or be functionally recreated elsewhere to allow Obama to claim to have fulfilled a promise, but he lost the fight and the facility remained open. (Not that Obama ever put that much effort into the fight. As a White House official told the New Yorker, the dominant attitude was “Why are we going to waste our political capital on detainees? No one is going to give you any credit for closing Guantánamo.”)

Today, we must be careful that opposition to Trump’s plan does not take a similar form, with opponents simply getting him to agree to build his migrant concentration camps on U.S. soil instead of in an imperial outpost. We have to be clear that Trump’s crackdown on immigrants is cruel and unnecessary and that the correct immigration policy is one that is welcoming and enables unauthorized immigrants to pursue a path to legal status. We must not only demand the permanent closure of Guantánamo but the guaranteeing of basic human rights everywhere, which means there should not be such a thing as a tent jail anywhere, neither on Cuban soil nor American.