Pentagon, DHS Stonewall on Military Base Detentions for Immigrants

by Spencer Ackerman   on August 10, 2018   publication:

With a self-declared deadline for detaining immigrant families on military bases approaching, the Trump administration is stonewalling the release of any substantial information on a policy that some service members have declared morally reprehensible.

After this piece initially published, the Pentagon told The Daily Beast the administration is moving forward with the preliminary planning necessary for on-base detention, even after losing a critical legal case that would allow the policy far greater flexibility.

But the Pentagon also indicated that there are additional steps for both it, the Department of Homeland Security and the Department of Health and Human Services to address before actually placing thousands of people, including children, in camps on military bases — steps that may provide the administration a way out of implementing a highly controversial policy.

Extensive detentions for families on military bases may no longer be legally viable, unless the children are freed without their still-detained parents, which would essentially mean a backdoor way of separating families.

“This is absolutely going to mean that families are going to be separated again in the future if they continue to use immigration detention as a way of deterring people from seeking protection in the United States,” said Jennifer Podkul of the human rights group Kids in Need of Defense.

“The administration created this crisis by detaining families unnecessarily and separating thousands of children from their parents, and that’s the only reason why they are now looking at military bases or other sites that could fall well below detention standards that require humane treatment,” said Greg Chen of the American Immigration Lawyers Association.

Following an executive order from President Trump — and a groundswell of resistance to the military caging immigrants suspected of being in the country illegally — the Pentagon announced on June 28 that it was moving forward with the proposal. It said that the Department of Homeland Security had requested “capacity” from the Pentagon “to house 2,000 people within 45 days,” which comes due tomorrow, August 11. The idea is, DHS would run detention camps that the military would host on its bases.

The initial detention of 2000 people, intact families, would subsequently expand to what the Pentagon characterized as “an alien family population of up to 12,000 people,” either on a single base or on three bases in the southwest. Among the bases under consideration is Goodfellow Air Force Base, which hosts training for intercepting communications.

But after the announcement, the Trump administration sought unsuccessfully to amend a consent decree known as the Flores settlement. Flores holds that the government cannot detain in immigration cases for longer than 20 days. The administration sought to amend the settlement in order to climb down from a crisis it created under Attorney General Jeff Sessions “Zero Tolerance” policy of forcibly separating immigrant children at the border from their families. NBC’s Jacob Soboroff reported that court records indicate 559 children remain separated.

Immigration rights groups noted there is a side effect to Flores remaining in place. Nothing in the settlement prohibits the administration from continuing to detain adults beyond 20 days, on military bases or elsewhere. Only the children would have to be released — potentially without their parents. “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,” a retired Air Force lieutenant colonel and judge advocate, Rachel VanLandingham of Southwestern Law School, told The Daily Beast last month.

Podkul said she saw up close immigrant children in military detention in 2014 “when there was a real crisis,” she said. “But this is a very different situation. This is a situation where the government has created its own crisis, and by using [defense department] facilities and setting up tents along the border, they’re manufacturing something that looks like a crisis at a time when arrivals on the southern border are incredibly low.”

Chen predicted that detaining families on the bases, in whole or in part, beyond 20 days would invite substantial legal headaches for the administration. In addition to Flores’ rule on children, a standing federal court order on family reunification “blocks the Trump administration from reinstituting its practice of detaining children and their parents separately,” Chen said. “To comply with the law, the administration has to release them within 20 days. Family detention causes such terrible suffering to both the child and the parent that the government should end it entirely.”

Over the past month, both the Pentagon and the Department of Homeland Security have declined to answer ten inquiries from The Daily Beast about the fate and the future of the on-base detentions. The issue has faded from headlines without either a formal resolution or acknowledgement of a change in plans. Democrats on the House Armed Services Committee haven’t received any information from the Pentagon on the issue, either.

As of July 10, the last time a Pentagon spokesperson replied to The Daily Beast on the issue before publication, the policy was still in motion, though he acknowledged that the Pentagon did not yet have formal agreements with either DHS or the Department of Health and Human Services — which had asked the Pentagon to detain another 20,000 children on its behalf — delineating each department’s responsibilities for the on-base detention camps. That was after the administration failed to amend Flores. The same spokesperson indicated to the Texas Tribune on August 2 that the administration was moving forward.

A day after this piece initially published, the Pentagon spokesperson, Lt. Col. Jamie Davis, contacted The Daily Beast to say that the process continues to move forward – only the trigger for the 45-day timetable referenced in the Pentagon’s initial June 28 release was revised, something for which there appears to be no public release concerning.

Currently, Davis said, the Pentagon, DHS and HHS are in discussions about a memorandum of agreement laying out each department’s responsibilities for the prospective detention camps. There is no timetable for a completion of one. After one exists, and DHS or HHS determines a necessity to host the detention camps on military bases, either or both department will write the Pentagon with a formal request to establish the camps – at which point, the Pentagon will have 45 days to set them up.

DHS still has not responded to The Daily Beast.

HHS has only responded to The Daily Beast with an anonymous statement of talking points about examining four military bases “for possible use as temporary emergency shelters for unaccompanied alien children.” It said on July 24 that it has made no decision to use any of them yet.

“When you don’t have a plan, you have a crisis,” said Refugee Council USA executive director Mary Giovagnoli, a former senior Department of Homeland Security immigration official. “I hope the setbacks the government has experienced, properly, in the legal proceedings would prompt them to revisit what they’re doing. … The opacity is somewhat business as usual for this administration.”

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