Bonus 120: Trump's Guantánamo Memo

President Trump's authorization of expanded migrant detention operations at Guantánamo is certainly ominous. But there are serious legal and practical obstacles to it actually accomplishing anything.

Welcome back to the weekly bonus content for “One First.” Although Monday’s regular newsletter (and extra issues like Monday night’s impoundment primer) will remain free for as long as I’m able to do this, I put much of Thursday’s bonus content behind a paywall as an added incentive for those who are willing and able to support the work that goes into putting this newsletter together every week. I’m grateful to those of you who are already paid subscribers, and hope that those of you who aren’t will consider a paid subscription if and when your circumstances permit:

I wanted to write today about the “memorandum” President Trump signed yesterday afternoon purporting to authorize the expansion of migrant detention operations at Guantánamo. The operative language of the memorandum is both brief and maddeningly vague:

I hereby direct the Secretary of Defense and the Secretary of Homeland Security to take all appropriate actions to expand the Migrant Operations Center at Naval Station Guantanamo Bay to full capacity to provide additional detention space for high-priority criminal aliens unlawfully present in the United States, and to address attendant immigration enforcement needs identified by the Department of Defense and the Department of Homeland Security.

This memorandum is issued in order to halt the border invasion, dismantle criminal cartels, and restore national sovereignty.

Note what the memorandum says: It’s not ordering anyone to be sent to Guantánamo; it’s directing two Cabinet officials to expand the capacity of the Migrant Operations Center (MOC) to handle additional detentions. Of course, there’s no reason to expand the MOC’s capacity if you’re not planning to use it. And for obvious reasons, any public suggestion by Trump that he’s even considering sending anyone to Guantánamo will ignite a firestorm of criticism and alarm—as it should.

But the reality is that we have never sent individuals to Guantánamo, whether to the MOC or for military detention as “enemy combatants,” who were arrested or otherwise captured in the United States—even during the heyday of the mid-2000s military detention operations. That’s not just a rhetorical point; it turns out that there are meaningful reasons why it’s never been done before. And many of those same reasons would impose potentially insuperable practical or legal reasons why it wouldn’t accomplish anything for Trump to actually do so now—or, at least, why the enterprise would end up as little more than a colossal policy failure and an enormous waste of money. Trump may well still try to do it (indeed, those may be features, not bugs). But as I explain below the fold, (1) we should be crystal clear that, yesterday’s memo aside, he hasn’t done it yet; and (2) he’ll run into a ton of headaches, legal and otherwise, if and when he does.

For those who are not paid subscribers, the next free installment of the newsletter will drop on Monday morning. For those who are, please read on.

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As Hamed Aleaziz and Carol Rosenberg noted in the New York Times, Trump’s “memo called for expanding the Migrant Operations Center, which currently occupies a small former barracks that has had capacity for up to 120 migrants but in recent years held at most dozens at a time. It is near empty fields that could be transformed into a tent city.”

Importantly, this is not the same facility as the military detention center at Guantánamo that opened in 2002. Rather, the MOC was first set up on a different part of the U.S. Naval Base at the time of the Haitian refugee crisis in 1991 at least largely to as a place to temporarily hold Haitians captured by the Coast Guard on the high seas while they were screened to determine their eligibility for asylum. It was also used during that period as a holding facility for Cuban asylum seekers—and on and off throughout the 1990s as a way-station for other refugees who were interdicted by U.S. authorities before physically entering the United States. The point was not to detain individuals there indefinitely; it was to hold them only for long enough to determine if they should be allowed to enter the United States or returned to their home country. And by holding them outside the territorial United States, the theory went, the refugees wouldn’t have any rights to vindicate in U.S. courts until and unless the United States agreed to allow them to enter the country for the first time.

What Trump’s memorandum appears to be contemplating is something else entirely—converting the MOC into a long-term detention facility for non-citizens arrested in the United States while they go through removal proceedings, which can sometimes take years. If that’s the plan, it’s going to run into at least four major practical and legal obstacles—all of which should rather dampen the President’s ardor about pursuing it, at least if he wants to accomplish anything for the effort.

Obstacle #1: Federal Immigration Law

Federal law creates a battery of procedural and substantive rights for non-citizens facing removal proceedings—including, to take just one example, a right to counsel. Even those non-citizens with the relatively fewest substantive statutory rights in removal proceedings (depending upon their criminal history and their immigration status at the time of arrest) are still unquestionably protected by the Due Process Clause of the Fifth Amendment. (When the federal government determined, in early 2002, that one of the enemy combatants captured in Afghanistan and held at Guantánamo was a U.S. citizen, it quickly shipped him to a Navy brig in Virginia—presumably to reinforce the distinction between those who were entitled to protection under U.S. law and those who were not.)

Thus, and unlike Haitian or Cuban refugees or others captured on the high seas or on foreign soil, non-citizens who are in the United States at the time they are sent to Guantánamo would receive the full protections of U.S. immigration law. There are certainly lots of ways in which those protections leave more than a little to be desired. But housing such individuals at Guantánamo instead of inside the United States just wouldn’t change the governing substantive or procedural law one iota. To be sure, federal law doesn’t prohibit the United States from holding those non-citizens subject to detention pending removal at Guantánamo; the point is that it also provides no benefit to doing so. (The various statutory restrictions on transferring detainees from Guantánamo into the United States apply only to those in Department of Defense custody. ICE detainees wouldn’t trigger them.)

Obstacle #2: Judicial Review

Likewise, holding non-citizens facing removal at Guantánamo would do nothing to limit their entitlement to judicial review versus holding them inside the territorial United States. Yes, Congress eventually sought to take away the federal courts’ jurisdiction over cases brought by the military detainees at Guantánamo, but (1) Congress had to do that because the Supreme Court reaffirmed, in 2004, that the federal courts otherwise could hear lawsuits by non-citizens held there; and (2) that statute is limited to cases brought by, or on behalf of, non-citizens being held as “enemy combatants,” not all cases brought by non-citizens.

As if that weren’t enough, there’s also a long-standing body of Supreme Court precedent standing for the proposition that the government can’t moot the jurisdiction of the federal courts by moving someone who was within their jurisdiction at the time their case began to somewhere where they aren’t. Thus, before getting into any messy questions about what kind of judicial review the Constitution would require, non-citizens held in immigration detention at Guantánamo would have the same statutory right to judicial review of their removal (and their detention pending removal) as non-citizens held in the United States. Once again, holding them at Guantánamo wouldn’t alter any of the relevant legal rules.

Obstacle #3: Logistics and Cost

Both of the first two obstacles described above are significant legal reasons why any significant ratcheting up of migrant detention operations at Guantánamo is unlikely to accomplish much. But they also contribute to what may well be the biggest practical obstacle—the (potentially staggering) cost of the logistics. It’s not just the cost of building out a detention facility and housing individuals there; it’s the cost of providing all of the infrastructure that would have to go along with those operations—which, per Trump’s memo, might expand to encompass as many as 30,000 detainees. (The military detention facility, over 23 years, has held a total of 779 individuals, or 2.6% of that total.)

Of course, there are the direct costs of transporting, housing, feeding, and providing medical care to the detainees. But then there’s the housing, food, and other amenities for the personnel who are going to staff the facility; transportation for the innumerable personnel who are going to have to travel back and forth to Guantánamo (I’ve done it; it’s an enormous and expensive pain); and on and on and on. And unlike expanding the capacity of existing facilities inside the United States, all of this will have to be done from scratch. Not only would these costs quickly become prohibitive, but the very same money could presumably be used, far more effectively, to expand detention capacity inside the United States (if that were actually the goal, anyway). Again, the stunning costs of the military detention operations at Guantánamo, for 2.6% of the number of people Trump is contemplating, ought to be its own weight against trying any of this.

Obstacle #4: Stigma

The last obstacle may not seem like one that will much bother the Trump administration—the stigma that goes along with holding anyone at Guantánamo. But there’s a reason (okay; there are many reasons) why we haven’t sent any “enemy combatants” to Guantánamo since 2008, even during the first Trump administration. And believe me, that reason is not because the legal issues arising out of those cases have been settled. Guantánamo has become so singularly symbolic of clumsy efforts to avoid the rule of law that it’s provoked something of a counter-reaction from the courts. Consider just how much more process the enemy combatants held at Guantánamo have received than any of the non-citizen enemy combatants we detained in Iraq, Afghanistan, and at other sites outside the territorial United States. And that was for folks who had never set foot in the United States.

To take individuals physically in the United States, lawfully or not, and send them to Guantánamo is to invite that very stigmatic attachment to immigration detention that might otherwise be perfectly legal. It’s to provoke the courts into being especially watchful of what happens there. It’s to immeasurably complicate the ability of the United States to expeditiously resolve cases involving those individuals—and effectuate their removal from the United States.

It would be clumsy; grossly inefficient; and ultimately counterproductive. That may not stop this administration—which may want the spectacle of it more than any policy achievement. But it should. As for the rest of us, before assuming that this memo is the equivalent of the tanks rolling, we ought to at least indulge the possibility that it’s just another stupid, knee-jerk idea that is going to provoke more of a push-back from the courts and result in less of what the government actually wants to accomplish than a policy with similar goals that was undertaken even a bit more thoughtfully.