The Meritless ACLU Lawsuit to Stop Trump From Sending Illegal Aliens to Gitmo

Earlier this week, the Trump administration brought about 40 illegal aliens it had taken to the U.S. Navy base at Guantanamo Bay, Cuba, to a detention facility in Louisiana.

The reason behind the surprise move is unclear, but it likely has something to do with the lawsuit filed by the ACLU and others contesting the move to send aliens to Guantanamo in the first place. 

We should know more about the case once a federal judge in Washington hears arguments from both sides in the coming days. 

Some of the ACLU’s arguments lack merit, and even worse, one directly contradicts the position the ACLU took previously in a different Guantanamo case.

Some of the ACLU’s arguments are just untrue.

For example, an ACLU press release calls the detention facilities at Guantanamo “a remote, abusive prison” and a “site of grave human rights abuses” that have taken place “for decades.” That may make good copy, especially for some on the outer fringes of the radical Left, but the exact opposite is true.

The island is a two-hour flight from Washington, D.C., making it no more remote than any other Caribbean island. The United States has operated a naval base there since 1903. President Bill Clinton housed thousands of Haitian migrants there in the 1990s. After 9/11, President George W. Bush sent al-Qaida terrorists to Gitmo.

The conditions of detention at Gitmo comply with domestic and international legal standards and have done so for at least the past two decades.

Don’t believe me?

Both the Bush and the Obama administrations separately concluded that the conditions of detention for al-Qaida terrorists comply with Common Article 3 of the Geneva Conventions (the gold standard). Nothing has changed since then.

In spring 2006, as Deputy Assistant Secretary of Defense for Detainee Affairs, I took three European delegations to Guantanamo so they could see the conditions for themselves. After touring Gitmo, Alan Grignard, the deputy head of the Brussels federal police anti-terrorism unit, told the press it was a “model prison,” where detainees were “better treated than in Belgian prisons.”

The ACLU knows this.

Even The Washington Post, no fan of the terrorist detention policies or practices of the Bush administration after 9/11, editorialized on June 22, 2006:

“… Guantanamo now is, by far, the most comfortable and legally accountable detention facility maintained by the United States for foreign prisoners. … Guantanamo’s detainees have recreation facilities and good medical care, their continued detention is reviewed once a year by military boards, and prisoners are assigned advocates to help argue cases.”

So much for the ACLU’s hollow scaremongering about the conditions of detention.

But that isn’t the only problem with the ACLU’s arguments.

Buried in the group’s complaint lies another interesting tidbit: “the government’s transfers to Guantanamo thus far have focused on Venezuelan nationals with final orders.”

In other words, the Trump administration has sent to Guantanamo only a few illegal aliens who have lost years-long appeals contesting their removal from the U.S. and who have been ordered deported by an immigration judge.

Isn’t that exactly what should happen? Once a person is ordered removed and has lost his or her appeals, he or she should be removed and returned to their home country.

In the U.S., two categories of aliens have final orders of removal: those who are in immigration detention and those who are not.

The three Venezuelan nationals transferred to Guantanamo were all in an immigration detention facility in the United States prior to their transfer. Each had a final order of removal and was removed by the government.

Contrast those three with the more than 1 million other illegal aliens in the United States who have lost their appeals and have final orders of removal, but who are not detained. Those million are out in the community on their own. While they’ve been instructed to depart the country, most don’t leave voluntarily.

Illegal aliens are represented by counsel even after losing all their appeals and receiving a final order of removal. That means that these aliens could try to delay their removal by instructing their attorneys to file a “motion to reopen” the case.

That’s exactly what the ACLU’s complaint is: a plea to reopen the cases of three illegal aliens who have been ordered out of the country.

But this requires the ACLU to argue that transferring aliens to Guantanamo is tantamount to deporting them.

And that’s exactly what the ACLU has argued. In one press release, Arthur Spitzer, ACLU senior counsel and signatory of the complaint and petition for writ of habeas corpus, stated that “nothing in U.S. law authorizes [U.S. Immigration and Customs Enforcement] to detain people in foreign countries,” directly implying that Guantanamo is a foreign country.

A staff attorney with the International Refugee Assistance Project decried the Guantanamo transfers as a “lawless project to take people from U.S. soil and detain them at this notorious offshore prison.”

Yet when the ACLU filed an amicus brief before the U.S. Supreme Court in 2006 in Boumediene v. Bush (a lawsuit against the George W. Bush administration for denying terrorist detainees at Guantanamo the right to a file a writ of habeas corpus), it claimed that Guantanamo was not “a sovereign foreign nation.” Rather, it said, Guantanamo was a “U.S. Naval Base” over which the U.S. had “‘plenary and exclusive jurisdiction.’”

The court agreed, stating that the United States retained “de facto sovereignty” over Guantanamo.

If the U.S. retains sovereignty over Guantanamo, then legally, moving illegal aliens from Texas to Guantanamo is no different than moving them from Texas to Arizona.

Apparently, the ACLU doesn’t mind talking out of both sides of its mouth and making conflicting claims. Nor does it have a problem with making a false assertion that defies Supreme Court precedent.

The ACLU hopes that the public and the courts will be fooled by its meritless claims. Whether that will be the case remains to be seen.

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