Evidence suggests that Guantanamo is a de facto U.S. territory. For that reason—among others—PCA violations committed there are actionable.
On Jan. 29, President Trump issued an executive order directing the expansion of the Migrant Operations Center (MOC) at Naval Station Guantánamo Bay (NSGB) for “high-priority criminal aliens.” Since then, approximately 500 migrants—initially apprehended in the U.S.—have been detained at NSGB, and another 9,000 are being vetted for transfer. Detainees are under the supervision of the U.S. military and have been housed both in the MOC and at Camp Six—which at one point held alleged members of al-Qaeda. While the military is reportedly only acting in support of the Department of Homeland Security (DHS), the facts suggest their role is more “direct [and] active.” This raises the important possibility that the administration is violating the Posse Comitatus Act (PCA). This article outlines how the use of the U.S. military to supervise the detention of migrants at NSGB would violate the PCA, analyzes whether such a violation is actionable, and presents possible remedies.
The PCA
The PCA prohibits using “any part of the Army, the Navy, the Marine Corps, the Air Force, or the Space Force as a posse comitatus or otherwise to execute the laws[,]” but the law is unclear about what uses of military personnel are improper, and it leaves out entirely the issue of extraterritoriality. The first question has largely been fleshed out by the courts, leaving us with three tests for actions that “execute the laws”: first, any military act that is “regulatory, proscriptive, or compulsory in nature and causes the citizens to be presently or prospectively subject to regulations, proscriptions, or compulsions imposed by military authority”; second, “the direct active participation of federal military troops in law enforcement activities”; and third, “any [military] activities that pervade the activities of civilian law enforcement officials.” See also Bissonette v. Haig, United States v. Redfeather, and United States v. Jaramillo.
The use of “citizen” may seem problematic in the current context—which involves noncitizens—but the issue can be easily dispatched with because the term, as used in Bissonette, seems to be a colloquial distinction of petitioners from civilian law enforcement officers (LEOs) and the military. It is doubtful that this distinction has any real significance because the PCA is a criminal statute; as with all criminal statutes, the focus is on the acts and intent of the person accused of violating it—not on the victim.
Civilian LEOs assigned to correctional facilities exercise power that is regulatory, proscriptive, and compulsory by any typical understanding of those words, and consistent with how they were applied in Bissonette. These LEOs restrict the detainees’ freedom of movement, often using armed guards along the perimeter of a facility. The presence of guards is direct, as defined in Redfeather, because it involves personnel rather than just equipment. The personnel’s role is also active, as defined in Redfeather, because it involves searches, seizures of contraband and other evidence, and the pursuit of escaped detainees, and it may involve criminal investigations and the interrogation of witnesses. If these tasks are performed by uniformed members of the military, or even civilian employees of the Defense Department, it could constitute a PCA violation.
Declarations by both detainees and members of the military—filed in Las Americas Immigrant Advocacy Center v. Noem and Espinoza Escalona v. Noem—show that the military is being used in violation of the PCA. Mirroring Bissonette’s use of military personnel and resources to create roadblocks and an armed perimeter for the purpose of confining the citizens of Wounded Knee, NSGB employs military personnel and Camp Six’s walls to similarly contain noncitizen detainees in a manner that is regulatory, proscriptive, and compulsory.
Second, the military’s role here is both direct and active. Rather than merely engaging in a protective service of federal assets or providing assistance to civilian law enforcement, service members are engaging in strip searches, restraining detainees for out-of-cell movement, cell searches, direct supervision, serving food, and regulating and supervising phone use.
Finally, the military presence at Camp Six likely pervades that of civilian law enforcement. ICE “cannot be said to have been ‘lawfully engaged’ in the ‘lawful performance’ of their official duties” because those duties had been overtaken by the military. As of February, 900 service members were deployed to NSGB. The “Guard Force” at Camp Six consists of 28 soldiers, seven or eight Akima contractors, and only two ICE agents per shift. All three of the tests for what it means to “execute the law” are met, meaning that the PCA has been violated.
(Extra)territorial Application
No cases have addressed whether the PCA applies extraterritorially. As assistant attorney general in the Office of Legal Counsel, William Barr opined that the PCA does not apply outside the territory of the U.S. However, that memo was written in 1989, and NSGB has undergone significant changes since then. The memo was written before NSGB was used as temporary housing for HIV-positive migrants interdicted at sea, 9/11, and the Bush administration’s expansion of NSGB to house enemy combatant detainees.
For these reasons, the memo’s rationale is less persuasive and is certainly non-dispositive. Below I address this issue in two parts: First, I argue that PCA violations at NSGB are actionable because NSGB is territorial; second, I argue that PCA violations committed at NSGB should be actionable even if it is considered extraterritorial.
The Case for Territoriality
NSGB is the United States’s oldest overseas military installation. It is located within the sovereign territory of Cuba but has been under the legal jurisdiction and control of the U.S. since 1903. The treaty contains no termination date and has no provision for unilateral termination, effectively making it an indefinite lease agreement. The treaty does not expressly limit the uses of the land, but it also does not contemplate the detention of migrants apprehended within the U.S. Rather, it expressly says that the lease is to be used for coaling and a naval station. This traditional use was precisely how NSGB was used until the 1990s. Until now, no non-U.S. territory—including NSGB—has ever been used to detain migrants who were first apprehended and detained within the U.S.
The clearest reason why the PCA should apply at NSGB is that it is a de facto territory of the U.S., a fact the government concedes. According to the government, “there is no Cuban government presence at NSGB and no way for Cuban authorities to exercise any control over the detainees.” Additionally, “while [the detainees] have physically departed the [U.S.] …[,] DHS has not completed the removal mission and has certainly not surrendered them to the control of the Cuban government.” The government went on to cite the finding in Boumediene v. Bush that NSGB is a de facto territory of the U.S. As a de facto territory, NSGB is legally indistinguishable—for the purposes of applying the U.S. Constitution and statutes—from Naval Station Norfolk in Virginia.
In Boumediene, the Supreme Court held that noncitizen detainees at NSGB can challenge their detention with a writ of habeas. Although the issue of habeas is not entirely analogous with the question posed here, Boumediene remains relevant because it addresses the extent to which the laws of the U.S. apply to noncitizen detainees housed at NSGB. It is especially on point because the Court’s reasoning relied on the degree of objective control that the U.S. asserted over an otherwise foreign territory.
The Court observed that “questions of extraterritoriality turn on objective factors and practical concerns, not formalism.” Speaking to these factors, the Court noted that, since the U.S. has had complete and uninterrupted control of NSGB for more than 100 years, under an indefinite lease it would be impossible for the political branches to govern it without legal constraints. NSGB is “no transient possession. In every practical sense [NSGB] is not abroad; it is within the constant jurisdiction of the [U.S.]” The Court also held that “the detainees … are held in a territory that, while technically not part of the [U.S.], is under the complete and total control of our government.” As this concept relates to the general circumstances of the U.S.’s control over NSGB, and not solely habeas, this characterization of the territory ought to apply equally to questions of PCA violations occurring at NSGB.
Notably, this expansion of what is considered U.S. territory would not extend to all foreign facilities operated by the U.S. military. In Al Maqaleh v. Gates, the court remarked that “while it is certainly realistic to assert that the [U.S.] has de facto sovereignty over [NSGB], the same simply is not true with respect to Bagram[, Afghanistan].” Bagram was an active war zone at the time of the case, and the U.S. does not hold the same type of indefinite lease agreement with Afghanistan as it does with Cuba.
The Case for Extraterritoriality
Even if NSGB is not territorial, the PCA should still apply. Congress is silent on the matter, and no court has spoken on the issue. This creates a presumption against extraterritoriality, but presumptions are not insurmountable. Other U.S. laws without explicit extraterritoriality provisions are applied there. Aside from Boumediene extending the right of habeas to detainees at NSGB—and the subsequent filings of statutory habeas petitions by and for both enemy combatant and migrant detainees—there is also case law illustrating that criminal statutes can be applied to conduct committed at NSGB. Also relevant is the hope that the government is using some lawful basis to detain individuals at NSGB in the first place.
Criminal Statutes
Capt. John Nettleton—a former Guantanamo commander—was charged and convicted under 18 U.S.C. § 1001(a)(2), for making false statements at NSGB. Congressional intent for extraterritoriality had previously been read into § 1001 and, for the same reasons, the same should be done for the PCA. In United States v. Walczak, the court based its reasoning on the nationality principle of extraterritorial jurisdiction, the text, and the rationale in United States v. Bowman.
First, the nationality principle holds that a state has jurisdiction over its citizens for crimes committed outside of its territory. Under this principle, even if NSGB is outside of U.S. territory, those violating the PCA at NSGB would still be under U.S. jurisdiction for criminal offenses because they are U.S. citizens.
Second, the PCA reads in its entirety:
Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army, the Navy, the Marine Corps, the Air Force, or the Space Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both.
While perhaps less clear, there are similarities between the PCA and § 1001. Walczak focused on the phrase “Whoever, in any matter within the jurisdiction of any department of agency of the [U.S.]” and held that § 1001 applied to the false statements made on Customs forms without regard to the place where the offense occurred because the Department of the Treasury is a “department of the [U.S.]” Similarly the PCA focuses on “departments”—or rather branches of the U.S. military. While the text is not dispositive, it suggests that the location is irrelevant because the criminal conduct is the improper use of military branches and the branches—or “departments”—are necessarily deployed all over the world.
Third, in Bowman, the Court noted that to limit the
locus [of certain offenses] to the strictly territorial jurisdiction would be greatly to curtail the scope and usefulness of the statute, and leave open a large immunity for frauds as easily committed by citizens on the high seas and in foreign countries as at home. In such cases, Congress has not thought it necessary to make specific provision in the law that the locus shall include the high seas and foreign countries, but allows it to be inferred from the nature of the offense.
NSGB is the U.S.’s oldest overseas military installation, but it was not the first. In fact, in 1867, Congress was planning on using Midway Island in much the same way that NSGB was traditionally used—as a naval station and coaling depot. The Senate also consented to a treaty in 1878 that would have permitted a naval station to be built in Samoa. The PCA was enacted that same year—showing that Congress was contemplating overseas military installations and the PCA at the same time.
In 2021, Congress added the Space Force to the enumerated branches of the PCA. In doing so, they necessarily contemplated not just extraterritorial—but extraterrestrial—use of military power. Also relevant is that at this time, the U.S. operated around 750 foreign-based military installations, and the function of NSGB had been expanded to include temporary housing for HIV-positive migrants and long-term detention of enemy combatant detainees. With all this in mind, Congress surely understood the risk that the U.S. military could be used for civilian law enforcement purposes abroad. Knowing that, Congress did not create new exceptions or repeal the PCA. It chose to expand it.
Just like in Bowman, Congress’s intent can be inferred because the scope and usefulness of the PCA would be greatly curtailed if the U.S. could choose to move a class of persons to a foreign based military installation in order to avoid sanction for actions which—if committed within the territorial U.S.—would constitute a violation of the PCA. Otherwise, the large number of foreign-based military installations would enable immunity for violations committed in foreign countries. And, as the military is deployed worldwide and the statute criminalizes an improper use of the enumerated branches, congressional intent for extraterritoriality can be inferred from the nature of the offense. Put together, the nationality principle, the text, and the Bowman rationale weigh toward the PCA overcoming the presumption against extraterritoriality.
Basis for Detention
It is unclear what authority is being used to justify migrant detention at NSGB—it does not come from a specific act of Congress, and it was not within the contemplated uses found within the treaties with Cuba. Statements made by Secretary of Homeland Security Kristi Noem and Secretary of Defense Pete Hegseth, indicating that detention would be temporary pending deportation unless other countries would not accept the migrants, suggest that this authority comes from 8 U.S.C. §1537(2)(C), 8 U.S.C. §1231(a)(2)(A), or 8 U.S.C. §1231(g)(1). Critically, no provision of the Immigration and Nationality Act (INA) has an extraterritorial provision.
Military Purpose Doctrine
The Military Purpose Doctrine is important to consider as a possible exception to the PCA. It authorizes the military to actively participate in direct law enforcement activities when done for the primary purpose of furthering a Defense Department or foreign affairs function of the U.S. This is true even if doing so provides an incidental benefit to civilian law enforcement. But using the U.S. military to supervise detention of migrant detainees at NSGB is not just an incidental benefit.
This is clear from the recent use of the military in Los Angeles. By carefully limiting the permissible role of federalized troops in California to “protect[ing] the safety and security of federal functions, personnel, and property,” the government has shown us that illegal immigration is primarily a civilian law enforcement activity. Though they accompany ICE agents on immigration raids, military service members are present only to protect federal law enforcement and assist by establishing a security perimeter. They cannot conduct law enforcement activities. This point has been made time and time again—in social media posts, news reports, official statements, and court filings.
The government has also demonstrated that detention on a military installation is a civilian law enforcement activity. Large swaths of land along the U.S.-Mexico border have been designated as military installations and, while soldiers can temporarily detain trespassers there, they must turn them over when an appropriate law enforcement entity can assume custody.
Remedies
The available facts show that the PCA is likely being violated. Ubi jus, ibi remedium—for every wrong there is a remedy. Here, violators face the criminal sanctions enumerated in the statute and/or a variety of civil actions including ultra vires claims and habeas relief. A civil rights action may also be appropriate, but the probability of success is minimal. Because the guilty actors are federal instead of state agents, the suit would have to be brought as a Bivens action rather than a § 1983 suit. Bivens, however, will not be discussed at length here, as the Supreme Court has drastically limited Bivens actions and the probability of success is miniscule.
Ultra Vires Claim
An ultra vires claim can be brought, despite sovereign immunity, when the plaintiff brings suit against an official in their official capacity, can show that the official acted without legal authority or failed to perform a purely ministerial act, and seeks a prospective relief other than monetary damages. This is illustrated by a parallel case. California Gov. Gavin Newsom has brought an ultra vires claim arguing that the way the National Guard is being used in Los Angeles either amounts to or creates the risk of an imminent PCA violation.
Turning to the case at NSGB, neither the plaintiffs in Espinoza Escalona v. Noem nor those in Las Americas Immigrant Advocacy Center v. Noem brought claims related to the PCA—but they could have, because in both cases, officials have likely exceeded their authority, in violation of the PCA, by housing noncitizen detainees under military supervision. While petitioners could not seek monetary damages through an ultra vires claim, declaratory judgment and injunctive relief against future transfers would be appropriate, as both are proscriptive remedies.
Injunctive Relief
Emergency injunctive relief is proper to prevent additional transfers to NSGB. The question is to what extent it can be applied. Hundreds of cases have been filed against the Trump administration, and the scope of emergency injunctive relief has been a cornerstone issue. The Supreme Court recently kiboshed universal injunctions, which might suggest that each person has to file their own lawsuit to obtain relief—even if the wrong spawns from an executive order affecting millions of people. Fortunately the Court has left open several avenues for widespread relief: Plaintiffs may be able to certify nationwide classes; the Administrative Procedure Act might enable courts to set aside unlawful actions; and states could either file in state court and obtain nationwide injunctions upon showing of a “patchwork” of individual injunctions is insufficient to protect their interests or file a suit against the government directly in the Supreme Court.
Habeas
Habeas is the mechanism used to challenge legality or duration of confinement. Habeas jurisdiction is proper here for two reasons: Migrant detainees are “in custody under or by color of the authority of the [U.S],” and they are “in custody in violation of the … laws … of the [U.S.]”—namely the PCA. Additionally, the detainees here are in “the immediate physical custody of American forces who answer only to an American chain of command.” For these reasons, habeas relief should be granted and migrant detainees at NSGB should be released—whether that be into the U.S. or by removal to another country.
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It would be patently unlawful to use the military in this way within U.S. borders; it is dangerous to suggest that by removing detainees to a black site in the Caribbean the government is allowed to act with impunity. NSGB is a de facto territory of the U.S. On that basis alone, U.S. laws should apply there. But even supposing this is not true, there is reason to believe that the PCA should be interpreted to apply extraterritorially. In either case, there are remedies available for the migrants who have been, are, or will be detained under these conditions at NSGB.
– Kaitlyn Cieply is a 3L at Ohio Northern University. She is Justice of Mock Trial Teams, Vice President of the American Constitution Society, a Writing and Research Editor for the International Law Journal, and a peer mentor. Her academic interests include Constitutional Law, Criminal Procedure, National Security Law, and Habeas Corpus. As a non-traditional student, she spent 8 years working in corrections and briefly dabbled in victims’ advocacy prior to attending law school. Published courtesy of Lawfare.
