Trump plans to invoke 1798 law to increase number of migrants sent to Guantánamo after a wave of lawsuits

The Alien Enemies Act of 1798 is not only outdated, it’s one of the most infamous laws in the country’s history. It has only been used three times, all in wartime; during World War II it was used to send Japanese Americans to prison camps. Now, President Donald Trump intends to invoke it in his plan for mass deportations of illegal immigrants to increase expulsions, including to Guantánamo Bay, Cuba.

Trump could invoke the law as early as Friday to order the arrest and deportation of suspected members of the Venezuelan gang Tren de Aragua, which his administration has placed on the list of foreign terrorist organizations, according to information first reported on by CNN. The Alien Enemies Act grants U.S. presidents extraordinary powers to order the arrest and deportation of foreigners over the age of 14 who come from a nation that seeks to stage an “ invasion or predatory incursion” of the United States.

The possibility comes as the U.S. administration appears to have paused, or even definitively abandoned, its plan to send illegal immigrants to the Guantánamo Bay naval base. Since its inception last January, the plan has cost $16 million and transferred 290 people, apparently in vain: this week, the 40 illegal immigrants still held at the facility were returned to U.S. soil, according to the Pentagon.

The returns to U.S. territory, at least for now, have been carried out in a discreet manner that stands in stark contrast with the president’s explosive announcement of his plans, in a press conference in the Oval Office almost immediately after his inauguration in January. At that time, Trump announced plans to house up to 30,000 illegal immigrants at Guantánamo Bay, where the United States also maintains a prison for suspected Islamist terrorists and where some of the worst U.S. human rights abuses of this century have been perpetrated. The idea was part of his project for the largest deportation in the country’s history.

The 40 immigrants held at the naval base have been sent to Louisiana, where they are being held at a U.S. Immigration and Customs Enforcement (ICE) facility in Alexandria. Two weeks ago, the Department of Homeland Security transferred another 48 people from Guantánamo to the same ICE facility. In addition, on February 20, the United States deported a group of 177 Venezuelans to their home country after sending them to Guantánamo.

Unlike the transfers to the Guantánamo base, when the U.S. government used 17 expensive military flights and shared images of them on social media, the return trips have been arranged on ICE charter flights, which are much more economical.

In total, the Republican administration has transferred 290 undocumented immigrants from 27 countries to the naval base since Trump’s order was implemented. Of the 40 that remained there before this week’s flight, 23 were considered “high risk” and had been held in the base’s prison, while the remaining 17 were being held at the Migrant Operations Center. Before Trump’s January order, that center was being used to house migrants intercepted at sea while their release to their home nations or third countries was processed.

The reason for their return to U.S. territory is unclear. The initiative had generated a wave of protests and lawsuits from civil and immigrant rights organizations, as well as allegations of mistreatment by those deployed there. A federal judge in Washington was scheduled to hold a hearing this Friday to examine two lawsuits challenging the plan to relocate them to the base.

One of the lawsuits, filed on February 12, focuses on the detainees' lack of access to legal counsel. The second, filed on February 1, seeks to prevent 10 undocumented migrants detained on U.S. soil from being sent to the naval base.

The U.S. government claims that Guantánamo Bay, and the prison within it, is an excellent place to hold illegal immigrants considered dangerous, such as the Venezuelans it claims are members of the Tren de Aragua gang. Secretary of Defense Pete Hegseth, who visited Guantánamo Bay in February, has asserted that the prison, nicknamed Camp 6, houses “the worst of the worst” of the criminals among the detained immigrants. A delegation of Republican and Democratic members of congress also traveled to the naval base last week.

But so far, the U.S. government has not proven that the individuals it sent to Guantánamo have any connection to the Tren de Aragua. Most of those whose identities are known have no criminal record.

Lawyers for the plaintiff organizations argue that U.S. law does not allow the United States to transfer detainees to countries with which it has no ties, nor to detain anyone outside of U.S. soil. To these arguments, the Administration counters that the Immigration Act authorizes the government to detain undocumented immigrants in facilities under its control, and the base is one of them.

Immediately after Trump issued his order, the Pentagon moved hundreds of additional troops to the base—which is home to nearly 6,000 people—to prepare it for the thousands of expected migrants who have not arrived. These troops erected 195 tents with a capacity for 500 people, but U.S. authorities have acknowledged that the camp is not fit to accommodate anyone: in an area of intense tropical heat, they lack air conditioning to make the temperatures bearable, for example.

“It was clear that this idea was entirely for show, and because Donald Trump wanted to be able to say he was sending immigrants to Guantánamo Bay, with its history of human rights abuses,” in a decision “with no real operational value,” Democratic Congresswoman Sara Jacobs told ABC News on Wednesday. Jacobs was one of the members of the congressional delegation that traveled to the base last week. U.S. officials told the network that at least some of the additional troops deployed could be assigned elsewhere for operations to enforce the U.S. southern border.

Sign up for our weekly newsletter to get more English-language news coverage from EL PAÍS USA Edition