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.

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