The Pentagon is charging ahead with plans to construct detention camps for thousands of undocumented families on military bases—without the foundational bureaucratic and legal work necessary for a highly controversial and morally dubious operation.
It’s another sign of an ad hoc policy that risks creating uncertain, shifting rules affecting thousands of vulnerable people, including thousands of children, and potentially disrupting training and other activities on military bases—all as a spate of new court rulings, immigration lawyers say, complicate the detention plans even further.
“As with any other mission, DOD [the Department of Defense] needs to be told what the mission is, and who is going pay for it. Mission creep is always a concern—DOD, like nature, abhors a vacuum, so tends to fill the gaps left by interagency failures,” said Rachel VanLandingham, a retired Air Force lieutenant colonel and judge advocate who now teaches at Southwestern Law School.
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Over the past several weeks, the Pentagon has fielded a request from the Department of Homeland Security (DHS) to “house and care for” up to 12,000 undocumented families at bases on or near the southwest border. It’s also received a request from the Department of Health and Human Services (HHS) to similarly detain up to 20,000 undocumented children who crossed the border unaccompanied by their families. A Pentagon spokesperson, Lt. Col. Jamie Davis, told The Daily Beast that these children “are not separated” from their families by the government.
Typically, when the Pentagon partners with other agencies or departments on complex or controversial operations, it constructs agreements with them outlining the distinct responsibilities each must perform. Those agreements, often called memoranda of understanding, operate as functional rules of the road: a classic example is the October 2010 accord between the Pentagon and DHS distinguishing their respective roles in cybersecurity.
But Pentagon spokesperson Davis confirmed for The Daily Beast that there is no memorandum of understanding with either DHS or HHS, two weeks after the Pentagon first confirmed, in a June 27 statement, that it was working with DHS to construct the camps. Davis further said it was unclear when such a memorandum of understanding would be signed.
Nor is it clear if the Pentagon’s general counsel—its senior lawyer—has issued an assessment of the legal basis, limits and potential liabilities for base commanders and servicemembers involved in hosting the camps. But Davis pointed to the Economy Act as a legal wellspring for the Pentagon building camps on behalf of DHS and HHS.
“Without clear legal guidance from the Department of Defense general counsel or whomever else has been delegated to give it, there is a high risk of the DOD and uniformed service personnel—in particular, commanders—running afoul of law and hurting people in the process. In a domestic operation, sound legal advice is paramount,” said Joshua Kastenberg, a professor at the University of New Mexico Law School and a retired Air Force judge advocate and trial judge.
The Pentagon has consistently said it will provide only support services to the camps, but an accord between it and its two partner departments is supposed to iron out the crucial details of a policy that poses a major challenge even were the mass detentions to be implemented smoothly.
In addition to the moral concerns that active and retired servicemembers have voiced with the military establishing what a retired Army sergeant called “concentration camps” on base, a host of operational concerns remain undetermined. Military bases are by necessity restricted areas, yet the thousands of undocumented people envisioned for detention on them need access to their lawyers for deportation proceedings. They also need secure areas to discuss their cases with attorneys, advocates or relatives, another factor complicated by the camps’ operation on military bases.
“Once a detention center exists on a military base, in theory—like anything on a military base—it falls under the control of the commander of that base,” said Kastenberg, who retired from the Air Force as a lieutenant colonel. “We’ve got this grey area of who’s paying for it, who monitors [the camps], who mans them, is there gonna be mission creep, and what are the liabilities on U.S. military commanders.”
Nor is there more clarity on Capitol Hill. A congressional source told The Daily Beast that the Pentagon has provided minimal guidance to its legislative overseers about how the camps will operate, and none of it on paper, only through phone briefings. While the HHS partnership for detaining the unaccompanied children is believed to be further along than the DHS proposal for family detention, “there are a lot of unanswered questions,” the source said.
One immediate question facing the Pentagon is the impact of a recent spate of court decisions on child and family detention on a detention camps system that is yet to exist.
Late Monday, a federal judge, Dolly Gee, declined the Trump administration’s request to amend what is known as the Flores settlement, which mandates that the government can only detain minors for up to 20 days before releasing them. That’s on top of a ruling from a different federal court last month that ordered an end to the administration’s practice of separating migrant families from their children.
All this adds extra uncertainty for the camps before they’re established. Unless the administration drops its plans for open-ended family detention, complying with the Flores settlement and releasing children after 20 days risks conflict with the earlier ruling prohibiting separating families.
A statement from a Justice Department spokesperson, Devin O’Malley, said the department was reviewing the most recent ruling, but appeared to open the door to continued family separation at the bases: “the court does appear to acknowledge that parents who cross the border will not be released and must choose between remaining in family custody with their children pending immigration proceedings or requesting separation from their children so the child may be placed with a sponsor.”
The Pentagon’s Davis did not respond to a question about the ruling’s impact on the impending camps.
Megan McKenna, a spokeswoman for immigration-rights group Kids in Need of Defense, pointed to O’Malley’s statement to warn: “Flores only applies to the detention of the child—there is no restriction on the detention of the adult.”
“If DHS is holding the parent and child, it cannot hold the child after 20 days, according to Flores. DHS can choose to release the parent and child and use alternatives to detention, but it cannot hold them both. If DHS chooses to continue to hold the parent in a facility, the child cannot stay with the parent,” McKenna said.
Denise Gilman, director of the University of Texas Law School’s immigration clinic, warned that the administration’s apparent interpretation of Gee’s ruling was at odds with the judge’s ruling, and an attempt to continue separations after 20 days in detentions the military bases would be met with more litigation.
“I think Gee meant no, you can’t separate families but that isn’t an excuse to hold people in family detention either,” Gilman said. “The bases are no different – families have to be released after 20 days, and I don’t think it’s an answer, though the government is trying to suggest it is, to say ‘we have to go back to the separation piece or we have to hold families together longer than 20 days.’ No, you have to release families together.”
Southwestern Law School’s VanLandingham, who called the separation of parents from children “morally appalling,” added: “Hopefully there won’t be another wave of separation, and hopefully DOD won’t have to do the administration’s dirty work for them in that regard. The military has a constitutional obligation to follow lawful orders from its civilian leadership, as well as a constitutional duty to disobey clearly unlawful orders.”
