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A Justice Department lawyer made the claim in response to a challenge to the administration’s use of the base at Guantánamo Bay, Cuba, to hold detainees designated for deportation.
Oct. 23, 2025, 7:38 p.m. ET
A U.S. government lawyer told a federal judge on Thursday that the homeland security secretary had the authority to send immigration detainees designated for deportation to any U.S. military base around the globe, in a defense of such detentions at Guantánamo Bay, Cuba.
The assertion came in response to a question from Judge Sparkle L. Sooknanan of the Federal District Court in Washington. Judge Sooknanan was exploring the government’s position in a challenge brought by the American Civil Liberties Union, which claims the extraterritorial detention is illegal.
She asked if Kristi Noem, the secretary, could send immigration detainees to any U.S. military base around the world.
“I don’t see why not,” replied August E. Flentje, a senior Justice Department lawyer.
Judge Sooknanan is deciding whether to confer class action status on migrants held in homeland security custody at the U.S. base at Guantánamo Bay. The A.C.L.U. requested that status, arguing that the operation is illegal because the men are in a limbo between deportation and detention on U.S. soil, where they have greater rights.
Over the summer, the Trump administration also held eight men at a U.S. military base in Djibouti while it fought and defeated a court challenge over its plans to deport them to South Sudan.
The A.C.L.U. challenge accuses the current administration of housing small numbers of men at Guantánamo, rather then in U.S. facilities, as part of a messaging strategy “to frighten immigrants, deter future migration, induce self-deportation and coerce people in detention to give up claims against removal and accept deportation elsewhere.” It has called conditions inhumane, and the detainees’ access to legal counsel inadequate.
The administration contends that the detentions by Immigration and Customs Enforcement are an extension of a longstanding U.S. policy that has allowed tens of thousands of migrants to be housed at the base since the 1990s.
Lee Gelernt, a lawyer for the A.C.L.U., said that case had a different legal basis because those men, women and children were intercepted at sea and had never reached the United States. Moreover, he said, they had the right to return to their countries upon request.
Immigration and Customs Enforcement agents working with the U.S. military have held about 710 migrants at the base since the operation began in February, a much more modest operation than President Trump envisioned in December when he ordered his administration to prepare to hold thousands of “criminal aliens” there.
The civil liberties group initially sought to represent individual detainees in court. But it shifted to a class action approach to challenge the overarching detention authority because the administration was moving detainees out of Cuba before the cases reached court — about half of those held there were sent back to facilities in the United States, Mr. Gelernt said.
No deportees were being held at Guantánamo on Thursday, Mr. Flentje said, because a hurricane was possibly “headed that way.” He argued briefly that the petition for the migrants should be dismissed because of the lack of homeland security detainees there, an argument that did not appear to interest the judge.
The government held 18 migrants at the base last week but sent them to Guatemala and El Salvador on Thursday and Friday, days before Tropical Storm Melissa formed in the Caribbean Sea. National Weather Service projections showed it could cross the island of Cuba as a tropical storm over throughout the weekend.
Much of the hearing was focused on conflicting views of the nature of the immigrant detention at Guantánamo.
The judge wondered if those returned from Guantánamo to U.S. facilities had been technically removed, under law, and should therefore have to undergo new removal proceedings.
Mr. Gelernt said Congress had never envisioned granting the government overseas detention authority for migrants when it crafted immigration laws on removal authority. He acknowledged that U.S. immigration agents had detained migrants in shackles in deportation flights, and stopped to refuel at overseas bases. But “there’s no question that they’re executing a removal order,” not housing them there as prisoners, he said.
Carol Rosenberg reports on the wartime prison and court at Guantánamo Bay. She has been covering the topic since the first detainees were brought to the U.S. base in 2002.
