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

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Good kick. And fun. I'm Sarah Loveritt. Internet law fair with an episode from the law fair archive for August 9th, 2026. On July 30th, the alien terrorist removal court held its first public hearing,

concerning the case of "Muziro Haji Zada," whom the government alleges is connected to the Islamic State.

The court, which was established in 1996, has never had a case until now.

Haji Zada's lawyers raised concerns about the due process of a court where much of the discovery is classified. The episode is reminiscent of other historical moments where immigration and national security intercept. For today's archive, I chose an episode from February 20th, 2025, in which Natalie Orpett sat down with Chris Murassola, a assistant professor at the University of Houston Law Center to discuss the Trump administration's plans to expand Guantanamo Bay to hold mom citizens in the process of being deported from the US.

The discuss similar issues of the legality of such a process and how it fits into the administration's broader immigration strategy. [music] It's the law fair podcast. I'm Natalie Orpett, Executive Editor of Law Fair, with Chris Murassola, an assistant professor at the University of Houston Law Center. And so, like the answers to these questions, they matter not only for the people who are detained at Guantanamo Bay,

they think they also matter as an indication as a bell-weather of what we're going to see in the weeks and months ahead from this administration, in terms of its appetite for kind of adopting some of these really aggressive theories to deploy the military. 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 US military in pursuit of his immigration policies.

OK, 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 fore and detainees from the so-called Moran 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 come from, you know, previous rhetoric from the first Trump administration that he would consider sending migrants to Guantanamo,

and now we hear 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? 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 the 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, 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.

And so we have this order that comes down January, I believe it's 29th, but in any event is the end of January.

“What we see from then on is this kind of like slow drip of details about what this kind of substantial increase in capacity of 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. And in this migrant operation 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. All of this, but it's all to say that we have this kind of plan in motion.

“I think that this secretary of defense has been calling it.”

It seems to be kind of increasing in scale as we have moved forward from the end of January. Okay, great. That's a really helpful overview. So I think I'm going to 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 upfront 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 territory of the 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 as a 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 this 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?

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 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 what time obey, 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 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. 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 gas-based on similar types of operations?

And is that, would it have other types of agreements like this been made public?

“Yes, 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 kind of time as a lapse. 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?

“Yeah, I mean, so I think that we're seeing a, and a combat ship in this circumstance, I think mostly because of the geography of Guantanamo Bay, right?”

There's 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, that's 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 personal 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 beg 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 DOHS.”

It's kind of like part and parcel of the same kind of quandary that we're finding. 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 Bay is, of course, a naval base. 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.

Yeah, great. And 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'll be looking for what legal basis DHS generally has to detain migrants in the process of deportation, right, and as others. My favorite professor Ingber has kind of 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 the 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 sort of calling a lot of this operation, which is like, how is the federal government treating Guantanol Bay for the purposes of this migrant operation?

Right, so and just for folks who are not aware of 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?”

So odd, right? When we think of the law of war detention, which has kind of characterized our collective understanding of this location for so many decades, right? It's fundamentally understood to not be the United States, right? When the federal government and subsequently the courts were grappling with the question of what legal protections, what constitutional protections pertain to law of war detainees who are being held at this installation, right? Guantanol 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 grapple with let alone like resolved, like in the context of this operation.

So yeah, I mean, it will be interesting to see what the government does with us 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?

Can I add actually one additional layer of geographic complexity to kind of what you just very well laid out please 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 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 war of war of detainees.”

That those migrants were being detained directly by military personnel and not by DHS law enforcement personnel.

Why does this matter? Because the military generally within the United States is restricted from conducting law enforcement functions because of the statute called the POSI COMATOTUS Act.

Now the POSI COMATOTUS 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 the institutional interests of DHS and DOD seem to be pointing in like opposite directions for this entire operation.

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[Music] So, as we've been talking about this raises a lot of complicated questions about the role of the military in this particular situation,

So, talk to us a little bit about that broader scheme.

“Great, yeah, you know, at the beginning of the administration, we saw in this kind of broad 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 using the first 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 that, like, you know, like the low end, right, and you need, like, the first activities of the Trump administration, the second time around was to increase that military deployment to the Southern border. But the range of theories kind of extended from there, right, the, I think, of orders contemplated invoking the Alien enemy act to authorize the military to conduct detention and immigration enforcement in ways that are kind of flying the face of clear text of the statute.

So as 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 four, it's some obligation to protect the United States from invasion in the form of these drug cartels. Clear 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 bell whether 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. So let's talk about a couple of those theories more specifically. So you had raised the Possecomitatus 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?”

Great. Yeah. So the Possecomitatus 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 to the Possecomitatus 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 100 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.

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, but appear to be a play, and which are, at least in our modern history, pretty foreign to our traditions of executive branch wiring.

“Okay, and do we have a sense of in the examples that you listed of previous employment for the purposes of backing up to H.S. what the legal theory has been behind why those did not constitute violations of the PCA?”

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

And we see that the roles at the military as 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, 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 law enforcement official, right, a DHS law enforcement official to do the actual introduction, 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.”

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. Okay, 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.

“Yeah, so this is a statute that goes all the way back to the aliens and in 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, we haven't had other than the Korean war a declared war since since then. But again, it's like very broad authority, it's it's unclear what the administration would be trying to achieve by invoking this authority. It is not already achieving through the current suite of statutory authorities, right, as we've already talked, right, DOD can assist DHS with attention 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 so that's very unclear to me, but just like on 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 and 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 swallow.

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.

“Yeah, 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 authorize 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 sospontate by the president if he determines that there is sufficient obstruction of the federal government's ability to enforce the laws. 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.

And 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.

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. Isn't there something sort of inherently contradictory about citing both the alien enemy act and the insurrection act? They seem internally contradictory.

“Indeed. I would not. 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 two 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. The question on the alien enemy act is given that it's posture toward an invasion from an outside foreign state, which as you've described as 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 would it follow necessarily from there that then the military would be operating in a lot of war context rather than a domestic law context?”

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 would be just like an incredible kind of shift of paradigm, right? For how the military is interacting with illegal immigration. And again, it's like we've seen some of that born out in some of the rhetoric from the Secretary of Defense, for example, right? It was 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.

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 gather illegal theory is in terms of being able to use the military for the purpose of immigration enforcement, which is obviously a key priority. And the impediment to which is the Pasi-Cottomatatus Act, there are sort of three different theories are supposed for different theories being thrown around and tested.

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 Pasi-Cottomatatus for outside of the United States.

Yeah, I think that's right. Yeah, there's kind of this right, there's like Schmorgus board of legal theory out there 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. 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? 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 the attention 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 legal decisions, I think are being made first in the context of the detention that's happening right now at Guantanamo Bay.

“Then I think we're going to see that trickle down right into whether we see any concrete action on alien enemy invocations or invocations of presidential constitutional authority to use the military.”

And so it all seems to be kind of stemming from this kind of evolving detention that we're seeing at Guantanamo Bay.

Okay, well, there is quite a lot to keep an eye on, but Chris Marassola, thank you so much for talking us through it.

“Thanks, Natalie. I really appreciate it.”

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