Executive Order 13823 and the Guantanamo Dilemma: Immigration Detention at the Edge of the Law

By: Lana Alnajm

Edited by: Valerie Chu and Claire Quan

For years, Guantanamo Bay has been at the center of America’s most divisive detention policies, emblematic of debates over national security and the legal limits of executive power. 

Now, its purpose may be evolving once again. Last Wednesday, President Trump announced a highly contentious executive order that tasks the Pentagon and Department of Homeland Security with preparing Guantanamo for its new mission: to house “the worst criminal illegal aliens threatening the American people.” [1]  In this decision, Trump builds on the controversial and security-focused Executive Order 13823. 

Executive Order 13823, signed by President Trump back in his previous term, doubled down on the idea that individuals deemed a “threat” to national security can be held indefinitely without due process of law—no courtroom “drama” required. [2] With this directive, the administration cemented its commitment to using Guantanamo as the detention destination, defying both domestic and international outcries for closure. Though framed in the name of "national security," many critics have argued that this is  a playbook for skirting the fine print of human rights and due process. [3]  Empirical data from the Congressional Research Service highlights that of the 780 detainees ever held at Guantanamo, only a handful have faced formal charges or trials, illustrating the lack of due process. [4]
The recent extension of Executive Order 13823 has sparked a myriad of legal questions. They range from concerns about due process and international law to the broader jurisdictional issues related to Guantanamo Bay itself. Nestled outside the U.S. mainland, Guantanamo exists in a legal no-man’s-land, where detainees are often stripped of the rights and protections they would typically receive under U.S. law. [5] This legal gray area raises concerns that holding migrants there serves as a loophole to bypass standard immigration procedures and constitutional safeguards. [6] ACLU lawsuits filed in 2025 against the administration indicate that detainees have been denied legal counsel and meaningful asylum hearings, reinforcing fears of due process violations. [7] Additionally, past cases, such as Boumediene v. Bush (2008), set a precedent that even non-citizens detained at Guantanamo have a right to challenge their detention. However, legal analysts argue that the current repurposing of Guantanamo attempts to circumvent this ruling by classifying detainees under different legal frameworks. For some, it represents a strategic circumvention of legal norms, while for others it signals a deeper erosion of the principles of justice and due process that should govern the nation’s treatment of all individuals. 

Another point of contention is the potential for blatant violations of international human rights agreements, such as the Universal Declaration of Human Rights. This agreement, and others similar in scope, require that individuals are not subject to inhumane treatment, a criticism that has surfaced numerous times in the past regarding Guantanamo’s condition. [8] Reports from human rights organizations, such as Amnesty International and the UN Human Rights Council, have detailed instances of mistreatment, ranging from forced feedings to prolonged solitary confinement. [9] The history of such abuses at Guantanamo raises legitimate concerns about whether migrant detainees would face similar conditions, despite international law explicitly prohibiting cruel, inhumane, and degrading treatment.

Furthermore, a subtle and significant concern among legal scholars is the potential erosion of the distinction between immigration enforcement and national security policy.  Repurposing Guantanamo—which has long been synonymous with terrorism and counterterrorism efforts—as a holding site for migrants risks setting a precedent in which the legal boundary between security threats and immigration infractions becomes blurred. [10] Historical parallels can be drawn from the post-9/11 expansion of national security policies into areas traditionally governed by immigration law, such as the PATRIOT Act's impact on immigration detention. [11] 

The broader implications of this can mean turning routine immigration issues into issues of national security, fundamentally altering the very framework through which immigration is governed.

The question of indefinite detention also looms large. Historically, Guantanamo has been a site for holding individuals without trial for extended periods, under the justification of national security. Applying this model to migrants could raise legal challenges, particularly as it might contravene both U.S. and international law, which generally opposes indefinite detention without due process or trial. [12] Data from the CRS report indicates that several detainees have been held for over a decade without charges, a precedent that could be dangerously extended to asylum seekers. [13] Given the ongoing backlogs and due process violations plaguing U.S. immigration detention facilities, critics fear that Guantanamo’s isolation will only deepen the challenges of oversight and accountability, further obscuring the system’s failures from scrutiny.

Among these, the due process issue stands out as the most relevant and pressing. With Guantanamo’s detainees potentially lacking key legal protections, critics see this as a direct affront to constitutional rights—an open invitation for legal battles to unfold. The irony isn’t lost on those who hold the U.S. legal system in high regard: a nation built on upholding civil liberties might find itself caught in the very web of injustice it seeks to avoid. Critics contend that such a move would undermine the very fundamental threads of justice that bind the nation and its law together. 
So, as Guantanamo Bay becomes the new frontier in immigration detention and policy, must we believe the government is safeguarding national security, or are we just creating a legal Bermuda Triangle where due process and human rights get lost in the shuffle, but this time, cannot slip by unnoticed?

Notes:

1. Sacha Pfeiffer, “Trump Says the U.S. Will Send the ‘Worst Criminal Illegal Aliens’ to Guantánamo Bay,” NPR, January 30, 2025, https://www.npr.org/2025/01/30/g-s1-45454/trump-says-u-s-will-send-worst-criminal-illegal-aliens-to-guantanamo-bay.

2. Executive Order 13823, Protecting America Through Lawful Detention of Terrorists, 3 C.F.R. 254 (2018).

3. Michael Kunzelman, “ACLU Sues for Access to Migrants Flown to Guantanamo This Month,” AP News, February 13, 2025, https://apnews.com/article/guantanamo-aclu-trump-migrants-ad918a8440826cf645ce7778b3ccc6c6.

4. Congressional Research Service, "Guantanamo Detainees: Constitutional Rights and Legal Issues," CRS Report for Congress, 2018, https://crsreports.congress.gov/product/pdf/LSB/LSB10654.

5. Congressional Research Service, "Guantanamo Detainees: Constitutional Rights and Legal Issues," CRS Report for Congress, 2018, https://crsreports.congress.gov/product/pdf/LSB/LSB10654.

6. Jonathan Blazer and Katie Hoeppner, “Five Things to Know About the Right to Seek Asylum,” American Civil Liberties Union, August 10, 2023, https://www.aclu.org/news/immigrants-rights/five-things-to-know-about-the-right-to-seek-asylum.

7. Michael Kunzelman, “ACLU Sues for Access to Migrants Flown to Guantanamo This Month,” AP News, February 13, 2025.

8. United Nations, “The Foundation of International Human Rights Law,” n.d., https://www.un.org/en/about-us/udhr/foundation-of-international-human-rights-law.

9.  United Nations Office of the High Commissioner for Human Rights, "United States: Prolonged Solitary Confinement Amounts to Psychological Torture," February 19, 2020, https://www.ohchr.org/en/press-releases/2020/02/united-states-prolonged-solitary-confinement-amounts-psychological-torture.

10. Council on Foreign Relations, "Guantanamo Bay: Twenty Years of Counterterrorism and Controversy," January 11, 2022, https://www.cfr.org/article/guantanamo-bay-twenty-years-counterterrorism-and-controversy.

11. Migration Policy Institute, "Two Decades After 9/11: Immigration and National Security," September 8, 2021, https://www.migrationpolicy.org/article/two-decades-after-sept-11-immigration-national-security

12. “The Immigration Consequences of Relocating Guantanamo Detainees,” Yale Law & Policy Review, n.d., https://yalelawandpolicy.org/immigration-consequences-relocating-guantanamo-detainees.

13. Congressional Research Service, "Guantanamo Detainees: Constitutional Rights and Legal Issues," CRS Report for Congress, 2018, https://crsreports.congress.gov/product/pdf/LSB/LSB10654.

Bibliography :

Blazer, Jonathan, and Katie Hoeppner. “Five Things to Know About the Right to Seek Asylum.” American Civil Liberties Union, August 10, 2023. https://www.aclu.org/news/immigrants-rights/five-things-to-know-about-the-right-to-seek-asylum.

Council on Foreign Relations. "Guantanamo Bay: Twenty Years of Counterterrorism and Controversy." January 11, 2022. https://www.cfr.org/article/guantanamo-bay-twenty-years-counterterrorism-and-controversy.

Congressional Research Service. "Guantanamo Detainees: Constitutional Rights and Legal Issues." CRS Report for Congress, 2018. https://crsreports.congress.gov/product/pdf/LSB/LSB10654.

Executive Order 13823, Protecting America Through Lawful Detention of Terrorists, 3 C.F.R. 254 (2018).

Kunzelman, Michael. “ACLU Sues for Access to Migrants Flown to Guantanamo This Month.” AP News, February 13, 2025. https://apnews.com/article/guantanamo-aclu-trump-migrants-ad918a8440826cf645ce7778b3ccc6c6.

Migration Policy Institute. "Two Decades After 9/11: Immigration and National Security." September 8, 2021. https://www.migrationpolicy.org/article/two-decades-after-sept-11-immigration-national-security.

Pfeiffer, Sacha. “Trump Says the U.S. Will Send the ‘Worst Criminal Illegal Aliens’ to Guantánamo Bay.” NPR, January 30, 2025. https://www.npr.org/2025/01/30/g-s1-45454/trump-says-u-s-will-send-worst-criminal-illegal-aliens-to-guantanamo-bay.

“The Immigration Consequences of Relocating Guantanamo Detainees.” Yale Law & Policy Review. N.d. https://yalelawandpolicy.org/immigration-consequences-relocating-guantanamo-detainees.

United Nations. “The Foundation of International Human Rights Law.” N.d. https://www.un.org/en/about-us/udhr/foundation-of-international-human-rights-law.

United Nations Office of the High Commissioner for Human Rights. “United States: Prolonged Solitary Confinement Amounts to Psychological Torture.” February 19, 2020. https://www.ohchr.org/en/press-releases/2020/02/united-states-prolonged-solitary-confinement-amounts-psychological-torture.