A group of legal aid organizations sued the Trump administration on Wednesday, asking that migrants who have been taken to the American military base at Guantánamo Bay, Cuba, have access to lawyers should they want legal representation.
“The isolation of the transferred immigrants at Guantánamo is stark compared to the attorney access protocols provided to ICE detainees in the United States,” the complaint said, referring to Immigration and Customs Enforcement.
It is the second challenge to aspects of President Trump’s policy after a judge prevented the government from moving three Venezuelan men who are being held in immigration detention in New Mexico to the base.
But the new case is significantly broader — and potentially more intrusive — on executive branch operations and raises the question of what rights detained immigrants are entitled to if they are relocated abroad. It asks the court to give immigration lawyers in-person access to the migrants at Guantánamo as soon as possible, and in the meantime, to immediately make remote access available, either by video or telephone.
“This is unprecedented,” said Lee Gelernt, an American Civil Liberties Union lawyer and the lead counsel in the case.
“No president has ever before tried to move immigrants from the U.S. to Guantánamo and prevent lawyers from meeting with them,” he added. “In an administration that has shown little regard for the rule of law, this may be the most flagrantly disrespectful action yet.”
A Justice Department spokesman did not immediately respond to a request for comment.
Any order to provide access to lawyers would create major logistical complications for the military. Human rights lawyers won a similar right to visit and communicate with the hundreds of terrorism detainees the Bush administration brought to the base after the Sept. 11, 2001, attacks so they could represent those who wanted to file lawsuits.
The Trump administration has not released a list of the names of the migrants it sent to the base, and it is holding them incommunicado. As a result, the men cannot currently file lawsuits themselves.
The plaintiffs include four immigrant advocacy organizations that say they want to offer their services to the migrants to help them bring any lawsuits: Las Americas Immigrant Advocacy Center, Raices, American Gateways and Americans for Immigrant Justice.
Several family members of three migrants have joined the suit, saying they want their relatives to have access to lawyers. They identified their relatives through photographs of one of the transfer operations that the government released.
The lawsuit argues that under the circumstances, the legal groups and family members have standing to sue since the detainees cannot file their own cases. A ruling that requires the administration to facilitate the migrants’ access to lawyers is required for several reasons, the plaintiffs contend.
Under the Constitution, detained immigrants facing deportation proceedings on American soil cannot be held incommunicado and denied access to lawyers. The lawsuit argues that the Trump administration cannot eliminate those rights by moving prisoners to foreign soil against their will.
As a result, it says, the migrants can still file habeas corpus lawsuits challenging the legality of their indefinite detention at the base, and with that comes a constitutional right to have lawyers. It also states that the legal organizations have their own First Amendment right to meet with detainees who may want to be represented by those groups.
On Jan. 29, Mr. Trump directed the military and the Department of Homeland Security to prepare to expand a migrant operations center at Guantánamo Bay, saying it would “provide additional detention space for high-priority criminal aliens unlawfully present in the United States.”
Since then, the military has flown dozens of men — all believed to be Venezuelans — from El Paso to the base. Most have been housed in a prison building built by the Bush administration to hold Qaeda suspects in wartime detention, while some are being held in a lower-security building on the other side of the base.
But while the Supreme Court has ruled that Congress authorized the wartime detention operations at Guantánamo, it is not clear what legal authority enables the Trump administration to imprison the migrants at the overseas base.
The U.S. government has long taken migrants picked up at sea to Guantánamo to be processed. But Mr. Trump’s order signals the first time an administration has taken people already detained on American soil — and who therefore have constitutional rights, even if they are in the country unlawfully — to a U.S. facility abroad to be held in continued immigration detention.
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