Obama's Failure To Close Guantanamo Meant It Was Open for Trump To Use

President Donald Trump ordered the government to prepare 30,000 beds at Guantanamo to house undocumented migrants.

Since retaking office last week, President Donald Trump has issued numerous executive orders to address a nonexistent national immigration emergency. This week, Trump pledged to house undocumented migrants in the U.S. detention facility in Guantanamo Bay, Cuba.

The plan is certain to spark blowback from progressives and civil libertarians alike and will likely provoke legal challenges. But ironically, Trump's action is partly enabled by former President Barack Obama's failure to close the facility in the first place.

"We have 30,000 beds in Guantanamo to detain the worst criminal illegal aliens threatening the American people," Trump said, according to CBS News. "Some of them are so bad we don't even trust the countries to hold them, because we don't want them coming back."

Trump later issued a memo directing the Departments of Defense and Homeland Security "to take all appropriate actions to expand the Migrant Operations Center at Naval Station Guantanamo Bay to full capacity to provide additional detention space for high-priority criminal aliens." (The Global Detention Project notes that the facility where Trump plans to house 30,000 migrants had "a previous capacity of only 130.")

Secretary Pete Hegseth affirmed that the Department of Defense was prepared to enforce Trump's order. "We don't want illegal criminals in the United States, not a minute longer than they have to be," he told Fox News' Jesse Watters. "Move them off to Guantanamo Bay where they can be safely maintained until they are deported to their final location, their country of origin, where they're headed. We feel great about this plan, we know we can execute it, and the Defense Department is prepared to do everything we can."

Located on the southeastern coast of Cuba, Guantanamo occupies an odd historical position as a vestige of American imperialism: The U.S. seized the bay in 1898 during the Spanish-American War as Cubans fought against the colonizing Spanish. When Cuba achieved independence, the U.S. leased the property from the new government and built a naval base. After Fidel Castro seized power in 1959, relations between the countries soured, but the lease had no end date and required the consent of both parties to terminate.

Ever since, the Cuban government has simply refused to acknowledge the legitimacy of the arrangement and does not cash the United States' lease payments. In a post on X, Cuban President Miguel Díaz-Canel called Trump's plan "an act of brutality" and said the base was "located in illegally occupied territory."

The U.S. has used Guantanamo to house migrants in the past: "In 1991, after some 30,000 people fled in makeshift boats, George H.W. Bush used the base to temporarily house thousands of Haitian refugees who were fleeing the country," Reason's Liz Wolfe noted on Thursday.

But those of us over a certain age associate Guantanamo—or as it became popularly known, "Gitmo"—with the post-9/11 war on terror, when President George W. Bush's administration designated the site a holding facility for noncitizen terrorism suspects. A December 2001 memo from the Department of Justice Office of Legal Counsel argued that "federal courts lack jurisdiction over habeas petitions filed by alien detainees held outside the sovereign territory of the United States," though it allowed that "a district court might reach the opposite result."

For the same reason, Trump's plan to offload tens of thousands of migrants to a place outside the United States' strict legal authority presents similar questions, such as whether the facility, its staff, and its detainees would be subject to the same laws as those housed in a domestic facility.

When Barack Obama ran for president, he pledged to close Gitmo and move the detainees to prisons in the United States. Just two days after taking office in January 2009, Obama issued Executive Order 13492, ordering that the facility "shall be closed as soon as practicable, and no later than 1 year from the date of this order."

But Guantanamo survived Obama's presidency and remains open to this day. Its history and continued operation formed the subject of the most recent season of the Serial podcast. And now, its continued existence means Trump can use it how he sees fit.

To be sure, the possibility of expanding Guantanamo's remit under a new presidential administration was always present. When Trump ran in 2016, he pledged, "We are keeping [Guantanamo] open, and we're going to load it up with some bad dudes." And 2012 Republican presidential candidate Mitt Romney promised, during his 2008 primary campaign, "Some people have said, we ought to close Guantanamo. My view is, we ought to double Guantanamo."

Indeed, this isn't even Trump's first use of infrastructure from a prior presidential administration to house migrants.

In 2014, thousands immigrated across the southern border from Central America, fleeing violence and poverty in their home countries. Struggling to address the sudden influx, the Obama administration built detention facilities to house migrant families.

The move was unpopular at the time. "The Administration has refused to treat the situation for what it is—a humanitarian crisis," the ACLU wrote in 2015. "Instead, it has chosen to paint mothers and their children as threats to border security. Family detention is the cruelest expression of this approach."

After Trump took office for the first time in 2017, he severely cracked down on immigration in numerous ways, but most infamously with his "zero tolerance" policy that separated children from their families. Trump ended the policy in 2018 under public pressure but not before federal immigration officials separated thousands of parents and children. Worse, the government kept such poor records that they were often unable to rematch children with their parents; at the end of Trump's first term, the government still held 545 children whose parents they could not locate.

But for all the anger justifiably directed at Trump and his officials, who snatched and imprisoned children separately from their parents, the task was made substantially easier by the Obama administration building out the infrastructure necessary to house thousands of migrants in the first place.

In fact, when Joe Biden attacked Trump over the policy during a 2020 presidential debate, Trump retorted, "Who built the cages, Joe?"

"One administration built the cages. Another administration filled them," Reason's Eric Boehm wrote at the time. "Before you start building cages, you should ask yourself how your political opponents might use them."

Similarly, Obama's failure to close the U.S.-run detention facility at Guantanamo makes it that much simpler for Trump to use it to house migrants.