Attorney-Client Protocols for Guantanamo’s Migrant Operations Remain Inadequate, Advocates Say

A tier of the Camp 6 detention facility. The camp is now used for migrant detainees.

Advocacy groups are continuing to seek improvements to the attorney-access system for migrants held on Guantanamo Bay, contending that the current protocols are “grossly deficient” for individuals facing deportation and beneath those used for war-on-terror detainees held at the facility.

This week, lawyers from the American Civil Liberties Union and other groups rejected claims made by Justice Department lawyers that the limited availability of phone calls to counsel located off the base was “reasonable and consistent” for the “temporary staging” of migrants with final deportation orders to other countries.

The filings came amidst uncertainty over the Trump’s administration’s plans for migrant operations on the U.S. Naval Base, the conditions for detainees held there and whether they will have the same due-process protections of detainees at Immigrations and Customs Enforcement (ICE) facilities in the United States. The dispute is currently before U.S. Judge Carl Nichols in Washington, D.C. A court date has not been set.

ACLU attorney Lee Gelernt said Thursday that lawyers had not been able to make contact with the latest group of detainees sent to the base on Sunday and Tuesday and that he was “not aware of any real changes to phone access” since the advocacy groups’ recent legal filings.

The Trump administration began sending Venezuelan migrants to the base on Feb. 4, less than a week after President Trump directed the Departments of Defense and Homeland Security to expand migrant operations on Guantanamo Bay to detain “high-priority criminal aliens unlawfully present in the United States.”

The ACLU, the Center for Constitutional Rights and the International Refugee Assistance Project filed a habeas suit and motion for a temporary restraining order on Feb. 12, seeking to prevent detainees from falling into a “a legal black hole” created by what was an unprecedented situation – the administration’s decision to transfer migrants facing civil immigration proceedings in United States to a foreign military base. The suit was filed on behalf of nonprofit legal aid groups attempting to provide services to the detainees and three of their family members. 

On the same day, lawyers from the Justice Department asked for time to respond to the suit, claiming that the plaintiffs were alleging “an emergency where there may be none” because the government was considering “in good faith to consider the counsel request.” Eight days later, in a Feb. 20 filing, the government said that it had established a system for attorney-client communications, which included the opportunity to make private phone calls. The government said it would “continue to evaluate” whether to allow for in-person legal visits.

The government’s filings stated that the “illegal aliens” held on the base remained in the custody of ICE. The military operation launched by Sec. of Defense Pete Hegseth in response to Trump’s Jan. 29 directive – named Joint Task Force Southern Guard or “JTF-SG” – was supporting ICE by providing “for the safe and humane care and control” of the migrant detainees, according to a declaration by Army Col. Jennifer Venghaus, the staff judge advocate for the new task force. Venghaus stated that JTF-SG was separate from JTF-GTMO, which runs the prison for war-on-terror detainees.

On the same day, however, the Trump administration removed all 178 migrant detainees from the U.S. Naval Base, with all but one being deported to Venezuela. A subsequent notice filed by Sarah Wilson, an attorney with the Justice Department’s Office of Immigration Litigation, said that the removals eliminated “any need for temporary injunctive relief.” Yet the next day, Sunday Feb. 23, the administration transferred a new group of 17 migrants of mixed nationality to Guantanamo Bay.

In its Monday filing this week, the ACLU reiterated its request for “immediate action” on the grounds that the Trump administration could “continually thwart judicial review” by quickly removing any detainees brought to Guantanamo Bay before they had access to lawyers.

“Without access to counsel, the risk of error is grave, including the possibility that the government may mistakenly remove detainees with pending cases, or even claims to U.S. citizenship,” the filing said.

Immigration advocates and family members of the migrant transfers have been critical of the Trump administration for inaccurately characterizing at least some of the detainees as violent criminals or gang members or affiliates.

President Trump’s Jan. 29 order to expand migrant operations – and subsequent plans to build out those operations to a capacity of 30,000 people – sparked concern among immigration advocates. They pointed out that even detainees held at regular ICE facilities in the United States face difficulties getting legal assistance. Because immigration cases are civil proceedings, individuals facing deportation proceedings in immigration court – which is part of the Justice Department – do not receive court-appointed lawyers. 

The Immigration and Nationality Act, however, guarantees a right to counsel “at no expense to the government” in immigration proceedings, including appeals. ICE, which is part of the Department of Homeland Security, requires that its detention facilities meet certain standards, which include providing information to detainees on obtaining legal assistance and the ability to communicate and meet with lawyers.

Advocates say the performance of ICE facilities in meeting these standards, as well as in providing language help to non-English speakers, varies widely, which leaves most detainees without legal assistance. According to the Vera Institute of Justice, more than two-thirds of the 3.7 million people facing deportation of December 2024 did not have a lawyer representing them.

Sarah Gillman, the director of strategic litigation at Robert F. Kennedy Human Rights, said that the immigrants who get lawyers tend to be either “lucky” or “super determined.”

“In civil immigration detention, thousands and thousands of people have no access to legal information,” Gillman, whose organization is not part of the ACLU suit, said. “Many of the people don't even speak or read English. Many people have mental health issues.”

Shortly after Trump’s decision to expand migrant detentions on Guantanamo, some advocates speculated about a potential irony unfolding – that individuals held on the base might be much more likely to get legal representation than the broader community facing deportation, given the outrage triggered by the high-profile move and the anticipated interest by leading advocacy groups.

As it turned out, the interest by the plaintiff legal aid groups in providing representation ran into practical hindrances, starting with the government’s refusal to provide the identities of the detainees or to list their names in ICE's online detainee locator. The ACLU suit said that it first learned of some identities from the government’s publication of photos of the early operations and the New York Times’ publication of 53 names on Feb. 12.

The filing this week said that, since then, the detainees’ limited phone access and inability to timely exchange legal mail meant that attorney access was effectively blocked. Tilso Ramon Gomez Lugo, a detainee who was eventually able to make a call prior to his removal, said in a declaration dated Feb. 17 that officers initially told him and others that “this is a terrorist prison and there is no capacity to make calls.”

James Connell, a lawyer for Sept. 11 defendant Ammar al Baluchi, attempted to meet with Lugo and another Venezuelan detainee at the request of the petitioning legal groups, according to a declaration filed by Connell this week. Connell, who also represents a war-on-terror detainee not charged by military commission, Muhammad Rahim al Afghani, was already on the base for client meetings. Connell said that he did not receive a response his request made to Col. Venghaus.

“I was not permitted to conduct any in-person visits with immigrant detainees held at Guantanamo, although I hold a TS//SCI clearance, and was already physically present on the island,” Connell said.

While visitors need approval from the Department of Defense before visiting the base, Connell described the system as “manageable” and noted that even “non-government employees travel to [the base] to fulfill their contracts, visit family or friends, and even tourism.”

Lawyers on the military commission cases have previously explained that, in addition to regular in-person meetings, legal teams can send same-day communications to their clients through a courier system on the base.

In defending the limited phone-call protocols, the Justice Department contended that the migrant detainees on Guantanamo all faced “final orders of removal” and, therefore, had “limited rights.” But advocacy groups countered this week that such individuals still have “many forms of immigration relief and legal remedies, including motions to reconsider and reopen,” as well as habeas petitions and new asylum claims based on changed circumstances. The groups said that nonprofit legal organizations, including the plaintiffs in this case, regularly visit ICE facilities to give rights “presentations” to detainees without counsel to see if they want help – a process not possible with the current restrictions.

According to its court filings, the government had been holding 127 of the first 178 Venezuelan migrants in the larger detention facility used for the war-on-terror detainees, though in a separate camp – Camp 6 – of the prison complex. (The 9/11 suspects and other un-charged detainees are in Camp 5.) The remaining 51 Venezuelans were held in the Naval Base’s existing migrant operations center or “MOC,” which is on the opposite side of the Naval Base, separated by the bay. These migrant operations have previously been used for individuals picked up at sea, not for those captured in the United States.

Following Trump’s Jan. 29 order, the government began expanding the MOC area – which at the time had a capacity for about 100 people – by erecting dozens of large tents. The declaration filed by Col. Venghaus stated that detainees in both Camp 6 and the migrant operations center were given access to phones following the ACLU suit. This week's filing by the ACLU said that protocols in both locations were legally insufficient.

The government may now be halting plans to use the MOC area, at least temporarily, because it cannot meet ICE-facility standards, according to recent news reports. The next waves of migrant detainees – 17 transferred on Sunday and nine additional on Tuesday of this week – were placed in Camp 6.

Immigration advocates and family members of the migrant transfers have been critical of the Trump administration for inaccurately characterizing at least some of the detainees as violent criminals or gang members or affiliates – and for intentionally using the same language previously used by administration of George W. Bush when describing the early terrorism suspects sent to Guantanamo Bay, beginning in 2002. The Washington Post this week published accounts of three detainees first held at Camp 6 and removed to Venezuela, who reported harsh conditions and multiple suicide attempts.

The ACLU filing this week said that the detainees “have a substantive due process right not to be punished” because they are being held in civil detention. Lawyers said that the detainees have worse attorney access than individuals held in prison, even though the Departments of Defense and Homeland Security have so far not explained why “basic attorney access” would interfere with ICE removal operations.

“In fact, Defendants do not explain how granting detainees the ability to consult with counsel would impose any burden on their ability to process cases lawfully,” the brief said.

Gelernt from the ACLU said Thursday that the judge assigned to the case could schedule a court hearing or rule on the written submissions.  

About the author: John Ryan (john@lawdragon.com) is a co-founder and the Editor-in-Chief of Lawdragon Inc., where he oversees all web and magazine content and provides regular coverage of the military commissions at Guantanamo Bay. When he’s not at GTMO, John is based in Brooklyn. He has covered complex legal issues for 20 years and has won multiple awards for his journalism, including a New York Press Club Award in Journalism for his coverage of the Sept. 11 case.  His book on the 9/11 case is scheduled for publication this year.