Trump should send migrants to Guantanamo

The word is out: if you want to cut the long line of people waiting legally to immigrate to America, just sneak across the southern border and ask for asylum. Every day now, Customs and Border Protection agents stop more than 3,000 people entering the U.S. illegally and the number has been trending upward rapidly. No one knows how many others slip through undetected.

Almost all of these people fail to meet the definition of a refugee, which is someone with a specific and well-founded fear of persecution in the place they are fleeing. But they have been coached to say the magic words necessary for arresting officers to begin a lengthy adjudication of whether or not they are bona fide refugees deserving asylum — which can take years. Thanks to permissive laws and activist progressive judges — especially those on the renegade Ninth Circuit based in San Francisco — the government must often release these asylum-seekers into America, after which most will evade authorities unless they are caught for another crime.

{mosads}The Customs and Border Protection is completely overwhelmed. Its leaders have asked for help from the Pentagon, courts, and Congress to little avail. Progressive California judges continue to hand down rulings that tie the hands of the government across the entire southern border. The chances are nil that this Congress will pass any law that moves away from the open border many of its progressive members seemingly desire.

The Defense Department is also asleep at the wheel, providing only minimal detachments to do things like string barbed wire. Last week, Acting Secretary of Defense Patrick Shanahan authorized a mere 320 additional troops, including some truck drivers and lawyers.

Our defense leaders apparently prefer emphasizing far-away operations and high-tech weapons to the rote but essential job of defending our border. This sentiment was reflected in a recent report that former Secretary of Defense James Mattis was intentionally unhelpful to President Donald Trump in cases when he did not approve of the Trump’s views, which seemed to be most.

In effect, the Pentagon has never joined the Trump administration. That needs to change.

Customs and Border Protection is desperately seeking to house migrants on domestic military bases, but that won’t stop the flood, since most will correctly assume they will eventually be released. That’s exactly what happened with Cuban migrants detained in Florida after the 1980 Mariel boatlift. Deterring these migrants from coming requires a different approach.

We should take a page from the past and transport asylum-seekers to our base in Guantanamo Bay, Cuba.

The public is most familiar with the use of “Gitmo,” as it is known in military lingo, for detaining high-level terrorists — illegal combatants caught on the battlefield who are awaiting military tribunals (at which the Pentagon has also failed). But Gitmo was used to house two large waves of Haitian immigrants trying to come to America illegally in the 1990s during the administrations of George H. W. Bush and Bill Clinton. Keeping them there and repatriating the vast number who were not legitimate asylum-seekers created a disincentive for more to come.

Given the lack of other options, President Trump should order the military to move migrants to Guantanamo for adjudication, replacing unhelpful defense leaders if necessary. That act will have a demonstration effect that should stop the flow. 

{mossecondads}If activist judges try to stop Trump from doing this, he has three options. First, Trump could take a page from President Andrew Jackson, who once remarked of a Supreme Court Justice who exceeded his authority: “John Marshall has made his decision, now let him enforce it.” In effect, Trump could assert that handling the mass compromise of our border is a military matter that falls entirely within his constitutional power to command the armed forces.

Alternatively, Trump could recognize that Mexico has lost control of its border area and authorize the military to detain migrants on the Mexican side of the border. From there, they could be transported directly to Guantanamo. Since the subjects never entered the United States, they would never be under the jurisdiction of U.S. courts. The several previous uses of Guantanamo were all based on this concept. Mexico would of course throw a fit, but that would also incentivize the government there to enforce its own immigration laws.

Less intrusively, Trump could recognize that the 10-50-mile corridor on the American side of the border is in effect a zone of military operations given the lawlessness there. He could then authorize the military to remove unauthorized border-crosses to Guantanamo for processing.

In any of these scenarios, the public would be on Trump’s side. The American people expect their military to defend the country and its borders, and that is precisely what it must now do.

NOTE: This post has been updated from the original to correct the name of the Customs and Border Protection agency.

Christian Whiton was a State Department senior adviser during the Trump and George W. Bush administrations. He is the author of “Smart Power: Between Diplomacy and War,” and a senior fellow at the Center for the National Interest.