Lawfare Daily: Guantanamo, Immigration, and the U.S. Military

[Intro]

Chris Mirasola: We were initially told that these migrants were going to be primarily detained, again, in this Migrant Operations Center, this part of the base that's kind of opposite the bay from the law of war detention center. All indications appear though, that like in the first kind of days and weeks of this plan, the initial group of migrants are actually being detained in the Law of War detention side of the camp.

Natalie Orpett: It's the Lawfare Podcast. I'm Natalie Orpett, executive editor of Lawfare, with Chris Mirasola, assistant professor at the University of Houston Law Center.

Chris Mirasola: And so, like, the answers to these questions, they matter not only for the people who are detained at Guantanamo Bay; I think they also matter as, like, an indication, as a bellwether of what we're going to see in the weeks and months ahead from this administration, in terms of its appetite, right, for kind of adopting some of these really aggressive theories to deploy the military.

Natalie Orpett: Today we're talking about the Trump administration's detention of migrants at Guantanamo Bay and the many legal issues it raises, especially the question of whether and how Trump can deploy the U.S. military in pursuit of his immigration policy.

[Main podcast]

Okay, Chris, so I have asked you to join us today under the somewhat otherwise unexpected situation in which we find ourselves, which is that Guantanamo is in the news again, not because of law of war and detainees from the so called war on terror, but rather in connection with this new administration's enforcement priorities with respect to immigration.

So to get us started, can you just give us a lay of the land? We, we come from, you know, previous rhetoric from the first Trump administration that he would consider sending migrants to Guantanamo. And now we, here we are at the beginning of the next Trump administration, and we are hearing reports that migrants have in fact been sent to Guantanamo.

So what is going on?

Chris Mirasola: Great, yeah. So at the end of January, right, we have this very short executive order that comes out of the White House. And President Trump says that he's going to be directing secretaries of defense and homeland security, right, to cooperate to really increase the scale of this part of the naval base at Guantanamo Bay that has for many decades been assigned for the temporary housing of migrants that are interdicted at sea in the Caribbean, right. And it's called the Migrant Operations Center.

And what President Trump wants to do now, right, is take these individuals who were being detained by DHS in the United States and move them to Guantanamo Bay so that they can be housed for a period of time that we have not been told on their way to, like, eventual repatriation back to their home countries.

And so we have this order that comes down in January—I believe it's 29, but in any event, it's the end of January. And what we see from then on is this kind of like slow drip of details about what this kind of substantial increase in capacity at Guantanamo Bay looks like.

We have started to see a number of migrants being flown to the base to be detained. We were initially told that these migrants were going to be primarily detained, again, in this Migrant Operations Center, this part of the base that's kind of opposite the bay from the law of war detention center. All indications appear though that like in the first kind of days and weeks of this plan, the initial group of migrants are actually being detained in the law of war detention side of the camp.

There also seems to be quite a substantial use of the military to do this actual detention. We'll get into all of this, but it's all to say that we have this kind of plan in motion, I think, as the secretary of defense has been calling it, that seems to be kind of increasing in scale as we have moved forward from the end of January.

Natalie Orpett: Okay, great. That's a really helpful overview. So, I think I'm gonna give a little bit of a lay of the land in the legal landscape because this really implicates so many issues and I want to walk through all of them with you. But I think it's actually sort of helpful to lay them all out up front, just because this really is like a law school exam issue spotting exercise.

So there are questions in this of, you know, what is the legal basis for detaining these individuals in the first place? Because we know that there are detention authorities related to immigration, but not whether they apply outside of the territorial United States.

What is the legal basis on which whoever is actually detaining them can detain them, which is related to the question of who's doing this—is it DHS, or is it the military? And if it is DHS, under what authority can DHS operate on a military base?

And then there are questions of what rights the migrants themselves actually have, being as they are located on Guantanamo Bay, which has, which has a long and complicated case law around whether the Constitution applies, in what sense, to whom, et cetera.

So let's get started with some of the specifics. As you mentioned, the original plan as stated in the executive order and as we heard in the sort of rolling announcements of things was that migrants would be held at the Migrant Operations Center, and as you mentioned, that's been around for a while. So tell us, what do we know about that center and what authority it's operating under?

Chris Mirasola: Fantastic. This will be the first of many times today that I say it's a little bit unclear. So, the Migrant Operations Center, right, is part of the base, which has been in existence for many decades, like I mentioned before. We know that it is operated by the Department of Homeland Security. We don't know much more than that.

It's not entirely clear what the nature of the interagency agreement between DOD and DHS is. In the normal course, this kind of installation support that DOD provides to another agency would be provided under the terms of the Economy Act, which is this kind of general provision of federal statutory law that allows one agency to support another with goods and services on a reimbursable basis, not only at Guantanamo Bay, but in many military installations DOD provides. kind of space for other agencies to conduct their own activities.

Most recently, this happened on a really large scale at DOD installations with the evacuation from Afghanistan—many tens of thousands, right, of evacuees housed on military installations. And in, in, in all the press releases related to that kind of support, it was always couched as DOD support to DHS being provided on a reimbursable basis in response to a request for assistance under the Economy Act.

We've had no similar level of detail about the legal basis for this particular installation support. We know that this is how DOD would usually support another federal agency in providing space for that agency's functions to occur in a military installation. I would expect that the same is true here, but we haven't had that level of confirmation from the White House, DHS, DOD, at all at this point.

Natalie Orpett: Okay, and just to be clear, do we know for sure whether or not the Migrant Operations Center—since it has been operating for several decades—do we know that it is operating under the auspices of the Economy Act, or is that just the best guess based on similar types of operations?

Chris Mirasola: Yeah, best guess based off of similar types of operations. We are told in public documents that it is operated by DHS, but we don't have much more information beyond that. And we don't have the actual interagency agreement that would be necessary for that kind of Economy Act relationship.

Natalie Orpett: And how common is that? Would have other types of agreements like this been made public?

Chris Mirasola: Yeah, so the agreement would usually not be made public, but we would usually have much more detail about the, kind of, institutional support arrangement that's happening between the two agencies. And that could just be a product of the fact that this plan seems to be kind of cobbled together as, as kind of time has elapsed.

Natalie Orpett: Mm hmm. Yeah, and I noticed one other thing that seemed strange to me. I'm curious whether it is.

The DOD announcement had also said that a combat ship, the USS St. Louis, was providing support as part of this broader operation that, as I understand it, is called Operation Southern Guard. And it's a ship that was previously deployed for drug trafficking issues, operations in the Caribbean as part of a different joint interagency task force, but has now apparently been either fully deployed or sort of brought in on some of the support for these migrant operations.

How unusual is it for a combat ship to be involved? And, and does that raise any additional issues in the legal analysis or is it the same as other types of military installations?

Chris Mirasola: Yeah, I mean, so I think that we're seeing a kind of a combat ship in this circumstance, I think, mostly because of the geography of Guantanamo Bay, right? There are just relatively few ways of getting the personnel that DOD needs to the base to provide the kind of logistical support on the scale that they need to, you know, plus up the camp from one that held, you know, migrants in the tens to migrants in the thousands, right?

And so, for example, like in the context of providing support for Afghan evacuees on DOD installations, a lot of that kind of military personnel support was provided from, like, personnel that were already on the base, right? And we just don't have that same kind of personnel capacity at Guantanamo Bay as you have at, you know, any number of military installations in the continental United States.

So I think it kind of begs the same set of legal questions, right? The questions around who is paying for some of the extra costs that were associated with even deploying these active duty personnel, right, to supporting DHS. So it's kind of like part and parcel of the same kind of quandary that we're finding.

Natalie Orpett: Okay, so let's drill down on the DHS component of this because, as you said, the Migrant Operations Center had been previously run by DHS. But from a big picture perspective, you know, many people will not be familiar with how that works legally because Guantanamo is, of course, a naval base, and there are other types of joint task forces there that are military.

But, you know, how does it work that a civilian agency is conducting operations? It seems, to some extent, in collaboration with the military, but is otherwise sort of exercising its own jurisdiction on a naval base outside of the territorial United States.

Chris Mirasola: Yeah, great. So with these kind of interagency agreements where DOD is providing basically you know, empty space for the other agency to conduct their own agency functions, we look to that agency's own legal authorities as the basis for that agency's activities, right?

And so here we will be looking for what legal basis DHS generally has to detain migrants in the process of deportation, right? And as, as others—Professor Hafetz, Professor Ingber—have talked about, the only kind of, like, readily apparent authority that we could point to for DHS is the INA, right, the standing kind of statutory framework for DHS to detain and deport migrants, right.

And there's a provision of the INA that authorizes DHS to detain migrants in the United States before they are deported to a third country. And importantly, right, this is an authority for DHS to hold these individuals in the United States, which kind of begs this kind of fundamental question that seems to be circling a lot of this operation, which is like, how is the federal government treating Guantanamo Bay for the purposes of this migrant operation? Because it seems to be that DHS would necessarily have to be relying on an understanding of Guantanamo Bay as a constituting part of the United States for the purposes of this deportation authority in the INA.

Natalie Orpett: Right, so, and just for folks who are not aware, the INA is the Immigration and Nationality Act, which is the legal framework for immigration and immigration enforcement.

But let's just talk about why the last part of what you said is very strange, which is that DHS seems to be treating Guantanamo as the United States for the purposes of its authority. Why is that so strange in Guantanamo?

Chris Mirasola: So odd, right? Because, right, when we think of the law of war detention, right, which has kind of characterized our collective understanding of this location for so many decades now, right, it's fundamentally understood to not be the United States, right?

When the federal government and then subsequently the courts were grappling with the question of what legal protections, what constitutional protections pertain to the law of war detainees who were being held at this installation, right, Guantanamo Bay was in many ways chosen because it was not in the United States.

And so there's this, like, inherent geographic tension that, like, we just have not seen grappled with, let alone, like, resolved, in the context of this operation.

Natalie Orpett: So yeah, I mean, it will be interesting to see what the government does with this, because of course there are still detainees from the so called War on Terror who are being held there under completely different detention authorities. But the government line there continues to be that Guantanamo is outside of the territorial United States, therefore outside of the United States, therefore the protections that those individuals would have legally in the United States do not apply.

And then the question will be, what will DHS say for the purposes of whether it can operate presumably under the Immigration and Nationality Act in Guantanamo, which is or is not under, in the United States as it seems like it needs to be for that authority to be intact. Do I say that correctly?

Chris Mirasola: Entirely correctly, and can I add actually one additional layer of geographic complexity to, to kind of what you just very well laid out?

Natalie Orpett: Please.

Chris Mirasola: Fantastic, right, so like, we've also seen, right, on top of all of this, these images of military personnel practicing direct detention of these migrants in advance of further waves of migrants coming to the installation.

And then, I think, as recently as yesterday, additional reporting from the New York Times indicating that the migrants that are being held in these facilities that were designed for law of war detainees, that those migrants were being detained directly by military personnel, and not by DHS law enforcement personnel.

And like, why does this matter? Because the military, generally, within the United States, is restricted from conducting law enforcement functions because of this statute called the Posse Comitatus Act. Now the Posse Comitatus Act has been understood to not apply outside of the United States, right?

And so again, this begs the question of how are we thinking of this installation for this detention kind of purpose? If DHS is treating it as within the United States, is DOD for PCA purposes and for law of war detention purposes considering it as outside of the United States?

And so it's just another way in which, like, the institutional interest of DHS and DOD seem to be pointing in like opposite directions for this entire operation.

Natalie Orpett: So as we've been talking about, this raises a lot of complicated questions about the role of the military in this particular situation in Guantanamo. But in your piece for us in Lawfare, you also helpfully contextualize this in the broader spectrum of the Trump administration's theories with respect to how the military can be involved in immigration enforcement. So talk to us a little bit about that broader scheme.

Chris Mirasola: Great. Yeah, you know, at the beginning of the administration, we saw in this kind of barrage of executive orders like a real range of, like, potential legal theories that the administration seemed to be actively contemplating to justify using the military for increasingly aggressive immigration enforcement actions.

And so they ranged from things that we had seen pretty frequently, right—a declaration of emergency at the southern border and a deployment of military to support DHS in its own law enforcement immigration activities at the border. And, right, that kind of statutory emergency authority we had seen used in the first Trump administration but also across a number of different administrations.

The Biden administration had declared a national emergency with regard to drug trafficking writ large, which was also used to deploy military to the southern border. These kind of DHS support missions trace back, at this point, many decades. And so, we saw that at the, like, you know, like, the low end, right, and indeed, like, the first activities of the Trump administration the second time around was to increase that military deployment to the southern border.

But the, the, the range of theories kind of extended from there, right? The executive orders contemplated invoking the Alien Enemy Act to authorize the military to conduct detention and immigration enforcement in ways that are kind of fly in the face of the clear text of the statute. There was kind of explicit reference to potential invocations of the Insurrection Act, all the way up to constitutional theories that the president might use to argue that under Article IV, he had some obligation to protect the United States from invasion in the form of these drug cartels.

And it was unclear in the early days of the administration how far along this, like, trajectory of increasingly tenuous and extreme kind of theories of statutory and constitutional interpretation the administration would go.

I think what we're seeing in Guantanamo Bay is like a real test case, right, for the administration's appetite to resort to these theories of inherent constitutional authority. And so, like, the answers to these questions, they matter not only for the people who are detained at Guantanamo Bay, but I think they also matter as, like, an indication, as a bellwether of what we're going to see in the weeks and months ahead from this administration in terms of its appetite, right, for kind of adopting some of these really aggressive theories to deploy the military.

Natalie Orpett: Yeah, so let's talk about a couple of those theories more specifically. So you had raised the Posse Comitatus Act as a restriction on the use of the military for enforcement purposes. But, you know, as you've been describing, the military has been deployed in support of DHS in a number of ways. So how exactly does that work and where are the tension points that you're describing as being assertions right now of Trump administration authority that are on the extreme side?

Chris Mirasola: Great, yeah.

So the Posse Comitatus Act, right, it's a general prohibition on using the military for domestic law enforcement. And in the text of the statute, it contains two exceptions: statutes which expressly authorize the president to use the military for law enforcement and constitutional provisions which expressly authorize the president to use the military for domestic law enforcement.

Now, the list of, of statutory exceptions to the act, are voluminous. The most famous of these exceptions include the Insurrection Act. There has generally been like a relatively high bar to establishing whether a statute is sufficiently expressed to be an exception to the Posse Comitatus Act.

On the constitutional end, the analysis is much less, frankly, rigorous historically. And so, from the time that the statute was enacted, there has been considerable debate about whether there are any constitutional exceptions to the PCA. For the first roughly hundred years of the statute's history, the War Department only listed one constitutional exception, that was the Guarantee Clause. And after World War II, the executive branch has listed no constitutional exceptions to the act.

Some of these constitutional theories that we're seeing, particularly the invocations of Article IV, appear to perhaps be a return or a contemplated return to this kind of prior understanding of constitutional exceptions to the act. Unclear, right, because we haven't seen it actualized yet.

But, like, more broadly, there's the possibility that the administration tries to circumvent the act entirely because administrations, for a very long time, have understood the PCA to not limit inherently military functions. So that would be like repelling an invasion, for example, and we see language about invasion all over these executive orders, right?

And so, there are a couple of different possibilities at the far end of legal theory here that appear to be at play, and which are, at least in our modern history, pretty foreign to our traditions of executive branch lawyering.

Natalie Orpett: Okay, and do we have a sense of, in the examples that you listed of previous employment for the purposes of backing up DHS, what the legal theory has been behind why those did not constitute violations of the Posse Comitatus Act?

Chris Mirasola: Yeah, so if you look at some of the particular functions that are being fulfilled here, there's a really actually helpful OLC opinion that was issued at the tail end of the first Trump administration.

And we see that the roles that the military is undertaking at the southern border are kind of support functions designed to free up DHS law enforcement personnel from doing non law enforcement tasks, right, that they ordinarily would have had to do because of personnel restraints, so they could then go and do a law enforcement task, right?

So you have the military doing things like repairing equipment, moving equipment between locations, acting as kind of surveillance at the border, so like looking across the border with a pair of binoculars, seeing if someone comes across the border, and then radioing to a, a law enforcement official, right, a DHS law enforcement official, to do the actual interdiction, right?

So this whole suite of functions that are related to law enforcement, but not actually exercising a coercive act on a migrant, like detention, like arrest.

Natalie Orpett: Okay, so in short, the legal theory is that they are not actually engaged in law enforcement. They are just there to do things that are not law enforcement so that DHS personnel can do the law enforcement.

Chris Mirasola: That's correct. Yeah, a hundred percent. That's right.

Natalie Orpett: Another one that you mentioned, a theory that was actually listed for, I think, the first time in one of the executive orders that has come out with respect to immigration is the Alien Enemy Act, which has not been invoked for a very, very long time and is quite controversial.

So tell us about that and how that fits into the assertion of why it is okay to use the military for immigration enforcement.

Chris Mirasola: Yeah, so this is a statute that goes all the way back to the Alien and Sedition Acts if you think back to your history classes. And it's this authority that allows, in so many words, the president to use the military and other federal officials to detain and expel foreign nationals of a state that the United States is at war with. The language itself is very old and therefore a bit more complicated than all of that, but that's like really what it really boils down to.

And as you say, we haven't seen the statutory authority used since World War II which in some case, you know, in some sense, makes a lot of sense because we haven't had, other than the Korean War, a declared war since, since then.

But again, this, like, very broad authority—it's, it's unclear what the administration would be trying to achieve by invoking this authority that it is not already achieving through the current suite of statutory authorities, right? As we've already talked, right, DOD can assist DHS with detention by providing space, right? The one thing it can't do is, is just detain the migrants directly.

And so, like, a big question in my mind is, like, what practically the administration would be trying to achieve, right, through this kind of invocation. And, and so, and so that's very unclear to me.

But just, like, on, on the terms of the statute, right, it requires that this detention these expulsions happen in the context of a war with another state. And so the factual leap that the administration would need to make, right, to declare drug cartels an enemy state with which the United States is at war, is just a factual leap that I think would be difficult from even a relatively friendly court to, to swallow.

Natalie Orpett: So another statute that you had mentioned that could be an exception to the Posse Comitatus Act is the Insurrection Act, which has also been floated. So talk to us about how that would create an exception that would get around the difficulty of having the military deployed for immigration enforcement purposes.

Chris Mirasola: Yeah. So, so, so the Insurrection Act is this kind of amalgam of a couple of different authorizations that were enacted kind of across our history going from the kind of second Congress all the way to the years directly after the Civil War. And they together authorized the president to use the military to suppress riots, insurrections, domestic violence of various kinds.  And it can be done either at the request of a state legislature or governor, or can be done kind of sua sponte by the president if he determines that there is sufficient obstruction of the federal government's ability to enforce the laws.

And so a lot of the language that we're seeing around invasion in these executive orders, in the consistent rhetoric of the administration, DHS, DOD, seems to potentially be like trying to lay a factual predicate, right, for an invocation of the Insurrection Act.

Again, we haven't seen any actual invocation yet; public discourse seems to be focusing mostly on the Alien Enemy Act at the moment. And so, really what the Insurrection Act would do is, like, unlock a more direct way in which the president could use the military for law enforcement functions—frankly, in a way that is kind of less facially at odds with the text of the statute than we were discussing with the Alien Enemy Act. The Insurrection Act has incredibly broad language, which is at least marginally more susceptible to kind of being used in the way the president seems to potentially be thinking about it.

Natalie Orpett: Isn't there something sort of inherently contradictory about citing both the Alien Enemy Act and the Insurrection Act? They seem internally contradictory.

Chris Mirasola: Indeed. I would, I'd very much agree. I mean, and I think what you're getting at here, right, is this kind of point that there is just like no semblance of consistent legal theory, or even like really theory of the case.

The motivating kind of impetus seems to be, how do we maximally use the military to maximally deport migrants from the United States? And that leads you, I think, in these legal directions that are just, like, inherently contradictory.

It's unclear to me the extent to which the administration is going to be seriously trying to reconcile these theories as they're exploring, you know, all of these different avenues for using the military.

Natalie Orpett: And I guess a question on the Alien Enemy Act, though, is given that it's postured toward an invasion from an outside foreign state, which, as you've described, is questionable given the nature of the people and the fact that a state is not really the right fit. Would invocation of the Alien Enemy Act, would it follow necessarily from there that then the military would be operating in a law of war context rather than a domestic law context?

Chris Mirasola: That's the context within which the Alien Enemy Act has always been used thus far, right? So, used in the context of World War II, World War I, the War of 1812, right? These, quite plainly, law of war contexts, right? So, I mean, that itself, right, would be just like an incredible kind of shift of paradigm, right, for how the military is interacting with illegal immigration.

And again, we've like, we've seen some of that borne out in some of the rhetoric from the secretary of defense, for example, right, which is, who is, who's kind of repeating the president's language about territorial sovereignty and integrity and therefore, like, this immigration issue as an issue of national defense as opposed to an issue of law enforcement.

Natalie Orpett: Okay, so just to summarize and tell me if I am missing anything, it seems to me that what is happening here at base in terms of trying to put together a legal theory is in terms of being able to use the military for the purpose of immigration enforcement—which is obviously a key priority—the impediment to which is the Posse Comitatus Act.

There are sort of three different theories, or I suppose, four different theories being thrown around and tested. One is the Alien Enemy Act. One is the Insurrection Act. One is sort of broader constitutional theories that we touched on a little bit. And one is maybe just the idea that if Guantanamo isn't the United States, then it's not a problem because there's an exception of Posse Comitatus for outside of the United States.

Chris Mirasola: Yeah, I think that's right. Yeah, there, there's kind of this, right, like smorgasbord of, of legal theory out there that, that kind of points either in the direction of recharacterizing the territory on which the detention is happening, or picking a different legal paradigm through which the administration is using the military and truly, like, federal government capacity more generally, right, to detain and deport migrants.

Natalie Orpett: Okay, so if it is as much of a sort of throwing spaghetti at the wall sort of strategy here—given that, as we've discussed, there seem to be some inherent contradictions between the different theories, such that it seems unlikely that they would all be eventually invoked together—what are you looking for in terms of next steps? How are you expecting that the administration will start to develop and sort of pick out of its spaghetti on the wall strategy, what it will ultimately be going with?

Chris Mirasola: I think the Guantanamo Bay detention seems to be developing into the proving ground of deciding what legal framework the administration is going to be using to justify employing the military to combat immigration. And so I'm looking to see the character, the nature of military interaction with detainees. I think that information is critically important.

I'm looking to see through something as like, wonky as the DOD comptroller's website to see the extent to which the Defense Department is moving around money which would suggest that the military understands this intention to be a DOD, and therefore perhaps a law of war or inherent presidential authority kind of a mission, as opposed to a mission of law enforcement for which they are getting reimbursed by the Department of Homeland Security.

Like a lot of these kind of foundational, kind of legal decisions I think are being made first in the context of the detention that's happening right now at Guantanamo Bay. And then I think we're going to see that trickle down, right, into whether we see any concrete action on Alien Enemy Act invocations or invocations of presidential constitutional authority to use the military. And so it kind of, it all seems to be kind of stemming from this kind of evolving detention that we're seeing at Guantanamo Bay.

Natalie Orpett: Okay. Well, there's quite a lot to keep an eye on, but Chris Mirasola, thank you so much for talking us through it.

Chris Mirasola: Thanks, Natalie. I really appreciate it.

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